Volume 77 — Illinois Reports

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

<p>1. Evidence—account-book. An account-book, to be used as evidence, should be the book containing an entry of transactions in the store, factory or office, as they occurred in the regular order of business. Where it is an old book, laid aside as a book of accounts, and use only for one entry of a late transaction, it is not admissible in evidence as to the latter entry.</p> <p>2. It has never been held that a single entry makes an account-book, nor has it ever been held that a single entry of cash in a book is competent proof.</p>

John Burns, Judge, presiding. This was an action of assumpsit, originally by Aloes Maier, administrator of the estate of Charles Mueller, deceased, against the Teutonia Life Insurance Company, upon a policy of life insurance. The declaration was amended by substituting Mary Mueller, Mary Maier, Kate Mueller, Mi lie Mueller, Carrie Mueller and Henry Mueller, as plaintiffs. The opinion of the court gives a substantial statement of the facts.

<p>Writ of Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.</p>

Cyrus Epler, Judge, presiding. This was ah action on the case, brought by Cassius G. Whitney against Edwin B. Harpham, Thomas Covington, Isaac Vail, Benjamin A. Rosebrough, Samuel C. Conwell, John W. Pitman, and twelve others, for an alleged malicious prosecution. The suit was brought' in the circuit court of Mason county, and, on the plaintiff’s application, the venue was changed to Menard county, and afterwards, on the motion of the defendants, to Morgan county.

Cyrus Epler, Judge, presiding. This was an action of assumpsit, by William W. Thorp, against Jeremiah Sibert and Jeriel Wildav, upon a promissory note.

<p>1. Judicial sales—of the fairness required. The greatest fairness is required of those entrusted by law to conduct judicial sales, and of those purchasing at such sales; and any agreement, contract or arrangement entered into, on the part of the bidders, calculated to prevent competition at, the sale, being contrary to public policy and a fraud upon the law, will vitiate the sale. A court of equity will not allow a party to profit by a purchase obtained by fraudulent means.</p> <p>2. Same—dear and satisfactory proof required to set aside. A. court of equity will not permit a judicial sale to beset aside without clear and satisfactory proof, especially after the lapse of several years, and where the purchaser has made valuable improvements, nor, in such a case, for slight or trivial causes.</p> <p>3. Thus, where land was sold at an administrator’s sale for its then value, and the purchaser redeemed the same from tax sales, and paid all taxes thereafter, and made valuable improvements, and the proof of an unlawful agreement, on the part of the purchaser, to prevent two persons from bidding, was of a suspicious character, and wholly denied 1>3" the purchaser in his testimom\ and it did not appear that the purchaser’s promise in fact prevented the bidders from bidding above the price paid: Reid, that a decree setting aside the sale was-not justifiable, and the same was reversed.</p>

<p>1. Master in chancery—tenure and term of office. Under the act March 3, 1845, which remained in force until the first day of July, 1874, the term of office of masters in chancery expired on the first day of April, 1847, and every two years thereafter. A person appointed to that office Oct. 8,1873, could only be appointed until the first day of April, 1873, and after the latter date the circuit judge had the right and the power to appoint his successor.</p> <p>3. Same—holding over, is a defacto officer. Where a master in chancery holds over after the expiration of the term for which he was appointed, he will be an officer de facto until his successor is-appointed, and as such his acts will be binding as to all persons, including his sureties on his bond, as his right to the office can only be questioned by- an information in the nature of a quo warranto.</p>

<p>1. Amendment—verdict in presence of jury. The amendment of a verdict in the presence of the juiy, so as to put the same in proper form, is not error.</p> <p>2. Vebdict—in an action on the case. A verdict in an action on the case, “ We, the jury, find for the plaintiff, and assess the damages at $275.16⅔,” signed by the foreman, will be sufficient without amendment. The defect, if any, will be cured by the Statute of Jeofails.</p> <p>3. Same—sufficiency of as amended. In an action on the case, where the jury returned a verdict for the plaintiff, and assessed the damages at $275.16%, and, under the direction of the court, the clerk 'changed the same so as to read, “ We, the jury, find the defendant guilty, and assess its damages at two hundred and seventy-five dollars and sixteen and two-tliirds cents (§275.16%),” to which exception was taken: Held, that, taking into consideration the fact the jury found the defendant guilty, l’elieved the finding of all ambiguity in using the pronoun its instead of his.</p> <p>4. Same—result of chance. An affidavit that, upon information and belief, the verdict of the juiy was the result of chance, and not the deliberate judgment of the juiy, by each putting down a certain sum and dividing the amount by 12, and which does not show any preliminary understanding that the i'esult should be adopted as the verdict, is insufficient to impeach the verdict, and, in such case, the polling of the jury, and their separate answers, relieves it of all objection.</p> <p>o. Municipal cobpobation — liability for act of railroad company, under its license, in filling up street so as to malee access to lot difficult. Where a city had established no grade of a street upon which the plaintiff had a lot, and upon which lie built a house, and a railway company, with the assent and by permission of the city, filled up the space between an original embankment and the plaintiff’s lot, so as to prevent access to his lot by wagons and carriages from the street, as had been his custom, it was held, that, as this was a special injury to the plaintiff", and peculiar to him, he was entitled to recover for the damages in a suit by him against the city.</p>

Tazewell B. Tanner, Judge, presiding. This was a bill in chancery, filed by the board of supervisors of Jackson county, against Samuel T. Brush, administrator of the estate of John M. Hanson, deceased, Hugh Crawford, John Ford, William Bradley, Thomas T. Robinson, A. C. Davis, James W. Hall, and the Cairo and St. Louis Railroad Company, to enjoin the delivery of certain county bonds. The opinion of the court states the facts of the case.

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

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

Charles S. Zane, Judge, presiding. This was a bill in equity, by appellees against appellants and others, praying that certain conveyances of lands in Sangamon and Menard coupties be set aside.

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

Cyrus Epler, Judge, presiding. This was a petition, filed by George W. Ragland, one of the heirs at law of Benjamin Ragland, Sr., deceased, against John H. Markillie, for the partition of certain real estate. The material facts of the case are presented in the opinion of the court.

<p>1: Trespass to person—arrest without warrant. Where the plaintiff was arrested,without any warrant, while peaceably' passing along the streets, on the charge of having been in a state of intoxication on the streets in the morning or middle of the same day, being sober at the time of the arrest, and forcibly taken before a police magistrate without showing any' authority' when demanded, and when brought before the magistrate, then engaged in other business, he was committed to the calaboose for abusive language to the magistrate, where he was detained over night, it was held, that he was entitled to recover against the defendants so arresting and detaining him, in an action of trespass for assault and battery and false imprisonment.</p> <p>2. Arrest—without warrant. Where a party was arrested in the evening, while peaceably' passing along the streets, without any warrant, and no statute or town ordinance was shown justifying the arrest, and the violation of no law or ordinance was charged at the time, it was held, that the arrest was illegal, notwithstanding the party so arrested may have been intoxicated some time during the same day, but not in the view of the parties arresting him.</p> <p>3. Contempt—power of justice of the peace to punish for. A police magistrate or justice of the peace has no power to imprison a party for a contempt of court. He can only inflict a fine not exceeding §5. Tn fining, he can order that if the fine is not paid the party be committed until the same is paid. In such a case, the imprisonment is only a means of collecting the fine, and not. a punishment.</p> <p>4. Excessive damages—imprisonment. Where a party' was arrested without warrant, for the violation of an ordinance, not in view of the officer arresting, and taken before a police magistrate, who ordered his incarceration for abusive and insulting language, when he only' had power to fine for contempt, it was held, in an action by the party so arrested and imprisoned, for the trespass, against the officers, that §200 were greater than should hatiebeen allowed, but not so flagrantly excessive as to justify setting aside the verdict of the jury on the ground that it was the result of passion or prejudice.</p>

Writ of Error to the County Court of Adams county; the Hon. J. C. Thompson, Judge, presiding. This was an application by the treasurer of Adams county, for judgment against real estate for taxes due the city of Quincy.

C. B. Smith, Judge, presiding. This was an action on the case, brought by Mary E. Smelsiev, against Michael Hackett, James Keefe, Philip Beibsame, John Selbach, Charles Weifel, Franz S. Batteiger and Andrew Rothfres.

Joseph W. Cochran, Judge, presiding. This was a bill in chancery, by the Chicago, Burlington and Quincy Railroad Company, and the Peoria and Hannibal Railroad Company, against Lewis W. Boss, to enjoin the prosecution of an action of ejectment, brought by Boss against the first named company, and for the specific performance of an agreement of Boss to grant and convey the right of way to the same company over the land of Boss.

<p>1. Interpleader—nature of the MU. A bil.I of interpleader is ordinarily exliibited where two or more persons claim the same debt, duty or other thing, from the plaintiff, by different or separate interests, and lie, not. knowing to which it ought to be rendered, fears he may suffer injury from their conflicting claims, and therefore prays that they may be compelled to interplead and state their several claims, so that the court may adjudge to whom the debt, duty or other thing belongs.</p> <p>3. Same—party filing can not contest the right to the fund he brings into court. Where a party owes a debt, or has a fund in his hands, and files a bill of interpleader against different claimants of the same, he will have no right to enter into a contest for a portion of the fund, as belonging to himself.</p> <p>3. Same—effect of default. Where a bill of interpleader is filed against two claimants of the same debt, which the plaintiff owes, and one of the defendants fails to interplead and set up his claim, but is defaulted, the default will amount to a confession that he has no claim to the money, and the party filing the bill will have no right to dispute the claim of the other party' who interpleads and sets up his claim to it, or to object to a decree in his favor.</p>

Lyman Lacey, Judge, presiding. This was a bill in chancery, by Ezekiel H. Palmer against Thomas Gardiner, sheriff, James M. Gunn, executor of the last null of A. Mitchell, deceased, Isaac 17. Mitchell, and Augustus P. Mitchell. The opinion of the court states the facts of the case.

Appear from the Circuit Court of McLean county; the Hon. Thomas F. Tipton Judge, presiding. This was a motion by Franklin Kimler to set aside a levy, and sale of a tract of land which had been levied upon and sold as the property of Walter Vanscoyoc, under an execution in favor of Kimler, and against Walter Vanscoyoc and Oliver H. P. Vanscoyoc.

Horatio M. Vandeveer, Judge, presiding. This was a claim filed by Margueretta Adams, wife of Eli Adams, against the estate of Joshua H. Wilson, deceased, in the county court, and taken, by appeal, to the circuit court, by John T. and William C. McDavid, administrators of the estate. A trial was had in the circuit court, resulting in a verdict and judgment in favor of the claimant for $227, from which the administrators appealed to this court.

<p>Appeal from the City Court of East St. Louis.</p>

Thomas F. Tipton, Judge, presiding. This was an action commenced by Andrew Nelson, against the appellant, before a justice of the peace, to recover damages for the killing of the plaintiff's cow, and taken by appeal to the circuit court. On a trial in the latter court the plaintiff recovered judgment for $40 and costs, and the railway company appealed.

<p>1. Promissory note—remedy on, wkwe the maker becomes a part owner. Where a member of a firm made a promissory note to a third party, who indorsed the same, and the firm of which the maker was a member purchased the same, it was held, that the holders could not maintain any aclion thereon at law against the maker, but that it still remained a valid and binding indebtedness against the maker, which a court of equity would enforce.</p> <p>2. Assignor and assignee—liability, of assignor when enforced in equity. Where A gave his promissory note to B, and the latter sold and indorsed the same, and the firm of which A was a partner acquired the same, and it appeared that A was insolvent at the maturity of the note, it was held, in equity, that the indorser was liable upon his assignment.</p> <p>3. Same—set-off in equity. Where one firm was indebted to another in. the sum of $800, and one of the partners of the debtor firm gave his promissory note for over §5000 to the creditor firm, who sold and assigned the same; and it was afterwards purchased by the first named firm, and it appeared that the maker was insolvent when the note matured, and so continued, and the second named firm brought suit against the other to recover the §800 due them, it was held, on bill in equity by the firm so sued, alleging the insolvency of the maker of the note, and of the firm suing at law, that the firm assigning the note were liable upon their indorsement, and, being insolvent, a court of equity would set oft" a sufficient amount of their liability as indorsers to liquidate and balance the sum claimed by them in the suit at law.</p>

Writ of Error to the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding. This was an action on the case, by Annabel Bricker against John M. Skidmore. The opinion states the substance of the facts.

<p>1. Forcible entry and detainer—sufficiency of possession. Where a party claiming a vacant lot, inclosed the same by building a fence so as to join with another fence and a brick wall, and thus keep out domestic animals, and inform all persons that the premises were appropriated, it was held, that this was a sufficient actual possession to maintain forcible entry and detainer against parties breaking down and destroying the fence in a forcible manner, under claim of ownership.</p> <p>2. Possession—paityhas no right to take by force. Where a party’s land is in the actual possession of another, even though unlawfully, he has no right forcibly to repossess himself, but must resort to the action of forcible entry and detainer, or the action of ejectment.</p>

O. L. Davis, Judge, presiding. This was an action on the case, brought by Victor Larson, against Samuel A. Murphy, for a malicious prosecution. The opinion of the court states the material facts of the case. .The plaintiff recovered judgment for §300 and costs of suit, and the defendant appealed.

Oliver L. Davis, Judge, presiding. This was a bill in chancery, by Sarah E. Cunningham, widow, and James H. Cunningham and others, heirs at law of James T. Cunningham, deceased, against the Illinois Central Railroad Company, Asa H. Danforth, George W. Dan-forth, William Durye and James Frakes. The object of the bill and the facts of the case are stated in the opinion of the court.

<p>1. Instruction—must be applicable to the evidence. The court should refuse an instruction where there is no evidence to which it is applicable. Where the defense of usury is set. up. and there is no evidence that the interest received beyond ten per cent was in the nature of a penalty, an instruction based upon that view of the case, should be refused.</p> <p>2. Same—modification not prejudicial. The modification of an instruction, which can not prejudice the rights of the party asking the same, presents no ground for reversal.</p> <p>3. Same—not necessary to state exceptions not proved. If an instruction is a correct expression of the law upon a state of fact proved, or which the evidence tends to prove, it is sufficient, and it is not necessary-to state exceptions which would be proper under a state of facts of which there is no evidence.</p> <p>4. Usury—all payments of, may be applied on the principal. Where a party contracts for and receives a greater rate of interest than is allowed by statute, lie can not recover any interest ■whatever on the principal, and all payments made of such interest may be allowed as payments of the principal in a suit to recover the balance due.</p> <p>5. Although usurious interest once paid can not be recovered back, yet the rule does not, apply where the transaction lias not been settled, and the lender brings his action for the recovery of an alleged balance. In such case, the borrower may defend by claiming a credit for whatever usurious interest he has paid in the same transaction.</p> <p>6. Same—evidence of usurious contract. The taking of usurious interest. is prima facie evidence of an usurious contract; and whether a contract is usurious or not, is a question of fact, to be determined by the jury from the entire evidence.</p> <p>7. Variance—g$ to time of malting contract. Where pleas of usury allege that the usurious contract- was made at a particular time, it is not necessary to prove that the contract was made at the time alleged. A variance in this respect is immaterial.</p> <p>8. Legal tender—interest payable in gold. An obligation for the payment of ten per cent interest in gold may be lawfully discharged, dollar for dollar, in any currency which the general government has declared to be a legal tender in the payment of debts. Therefore, any excess in interest beyond the rate allowed by law, will not be relieved of the objection of usury on account of the contract being to pay in gold, and the payment being made in currency.</p>

<p>1. Insurance—evidence to prove the property insured toas a subject of litigation. In a suit upon a policy of insurance of distillery properly, where the application, which was made apart of the policy, contained a statement that the propeiW had not been a subject of litigation since in present hands, the defendant, in cross-examining the plaintiff, asked the following questions : “State if you were present just previous to obtaining this insurance, when Crosby was attached for contempt of court in .running this distillery?” “about how many times, in your knowledge, has this distillery been seized by the. government?" which the court refused to allow: Held, no error, as the answers could not tend to show that the property had been in litigation since owned by the plaintiff, and the questions were not a proper cross-examination.</p> <p>2. Same—performance of condition to keep a watchman. Where permission was granted for closing distillery property, which was insured, for repairs, on condition a watchman should he kept on the premises, it was held, that it was of no consequence what particular part of the premises the watchman occupied. If he was about the premises in the discharge of his duty, even though occupying an office not insured, it was a substantial compliance with the contract.</p> <p>3. Same—condition which the company did not expect to be performed. Where an application for insurance contained a clause requiring a record to he kept of a watchman’s performance of duty, which was prepared by the agents of the company insuring, and was signed by the assured without knowing its contents, on the assurance it was all right, and it appeared that sucli record could' not he kept without a watch-clock, and that none was kept bn the premises, and this fact was well known to the company’s agents who made the contract, it was held, that, as the agents knew no such record could he kept when they made the contract, the company could not shield itself from the payment of a loss on the ground that no such record was kept.</p>

Thomas F. Tipton, Judge, presiding. This was an action of assumpsit, by Brokaw & Gregory, surviving partners of the firm of Brokaw, Ellsworth & Co., against the city of Bloomington, to recover the amount of an assessment of damages. The opinion states the material facts.

Charles S. Zane, Judge, presiding. This was an action on the case, by Frances Young, against the Sangamon Distilling Company and Joseph B. Greenutt, to recover damages resulting from the infection of plaintiff's cattle with disease from Texas and Cherokee cattle of the defendants.

S. M. Moore, Judge, presiding. This was a bill in chancery, exhibited by Edward Sherrer against Samuel Wing, Samuel W. Kroff, Lydia and Alice C. Whitman, Martin J. Whitman, Catharine C. Kroff, Elizabeth Kroff and Kienhard Hageman. The object of the bill and the material facts of the case appear in-the opinion of the court.

Lyman Lacey, Judge, presiding. This was originally two separate suits, brought by the appellant against the appellees, th'e one being an action of assumpsit and the other trover. By agreement, they were consolidated in the court below. On a J.rial, judgment was rendered in favor of the defendants, and the plaintiff appealed.

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

<p>1. New trial—on finding of the facts. Where there is evidence from which the jury could properly find tlieir verdict, it will not be disturbed, although the evidence mat', in the opinion of this court, justifj- a different result.</p> <p>2. If there is a total failure of the evidence, or if the verdict is manifestly against the weight of the evidence, it is the duty of the court to award a new trial and submit, the cause to another jury.</p> <p>3. Same—where the evidence is conflicting. Where the evidence is conflicting, and the witnesses have the same means of information’and are cqualfy credible, this court will not interfere with the finding of the jury unless there should be a clear and manifest want of evidence upon which to base it.</p> <p>4. Negligence—prima facie evidence of. The fact of the explosion of the boiler of a locomotive and killing of a person not in the employ of the railroad company, and in no way connected with it, is prima facie evidence of negligence in the company.</p> <p>5. But where such au explosion happens, through the negligent manner in which the engine is managed by the engine-driver, and kills the latter; or, if he had good reason to believe the boiler was unsafe; or if, h)' the exercise of ordinary skill, he could have ic-arned that the engine was unsafe, and still used it, no recovery can be had for his death; and in a suit by his personal representative to recover for his death, the explosion will not afford prima facie evidence of negligence against the company.</p> <p>6. Same—instruction as to evidence of. In a suit by an administratrix against a railroad compan3 to recover for the death of her intestate, who was an engine-driver of the company when killed Iw an explosion of the boiler of his engine, the court instructed the jury that, if the deceased used due care in running the engine, and it was no part of his duty to make a critical examination to ascertain the condition of the boiler, the bursting of the same was prima facie evidence of negligence which the company was bound to r-ebut by a preponderance of testimony: Held, that the instruction was erroneous, as it was a question of fact whether the accident arose from defects in the engine, or was attributable to the failure of the deceased to .discharge a duty enjoined on him as engineer; and tiiat, in the determination of these facts, the parties should have been placed before the jury with no presumptions in favor of either.</p> <p>7. Same—right of servant to recover against master for■ It may be regarded as the settled doctrine of this court that one servant, of a common master can not recover for injury resulting from negligence of another servant in the same line of employment, if the master has used proper diligence in the selection of competent servants. But where the two servants are not in the same line of employment, the one injured may recover from the common master.</p> <p>8. Thus, where ah engineer was killed by the explosion of the boiler of his engine, it was held to have been the duty of the railway company to furnish the deceased with a safe engine, and if this duly was neglected, the company could not relieve itself from liability on the ground that its mechanics, whose duty it w'as to build ami keep in safe repair its engines, were derelict in the discharge of their duty, such duty not being- in the same line of employment with that of the deceased.</p> <p>9. Instruction—when, great accuracy required. When the evidence as to the leading- facts of a case is evenly balanced, the juiy should be instinoted as to the law, with accuracy.</p> <p>10. Law and fact. Where a servant of a railroad company is killed in consequence of negligence on the part of other servants of the same company, in a suit by his administratrix, against the company, it is proper to submit to the jury, as a matter of fact, whether the deceased and such other servants -were in the same line of employment.</p>

<p>1. Corporation—director may deal with same as a stranger. A director or stockholder of a private corporation may trade with, borrow from, or loan money to the company of which he is a member, on the same terms and in like manner as other persons; but where a director loans money to his corporation, taking a deed of trust to secure the same, he must act fairly, and he free from all fraud and oppression; and if, in so doing, I10 acts for the interest of the company, and imposes no unfair or unreasonable terms, the security may he enforced the same as if given in favor of any other person.</p> <p>2. Same—directors may purchase indebtedness and property of company the same as a stranger. The managers or directors of a private corporation are not trustees of its property in such a sense as to disable them from purchasing the property and stock belonging to it. with the same effect as though they were not managers or directors. They will have the right to purchase the bonds or other indebtedness of the company.</p> <p>8. Same—when purchase by directors will be in bad faith. If the corporation has money, property, or assets that can be converted into money, with which to redeem its property from a judicial sale, or from the lien of a deed of trust, then it seems that a purchase of the certificate of purchase, or the bonds of the compan)', as a means by which to acquire its property, by the directors, -would be in bad faith, and the title thus acquired would not be sustained in equity.</p> <p>4. But where the company is insolvent, and has no means to discharge its indebtedness or redeem property sold, and tne directors give all the stockholders itn opportunity of making advances to relieve the company of its embarrassment, which they refuse to embrace, the directors will have the right to purchase such indebtedness and acquire title to the corporate property, by enforcing its sale under a deed of trust given to secure such indebtedness, and the other stockholders will have no right to complain.</p> <p>5. Same—right to sell, under deed of trust, property after satisfaction. Where the lands of a coal company, its shaft, railroad tracks, rails and mining rights, were sold under a deed of trust given to secure the payment of its bonds, and brought a sum sufficient to pay the bonds, and the com. pany owed other debts, it was held, that it was not only the right, but the duty of the directors to sell the remaining property to meet the other liabilities of the company, and that they might authorize its sale at auction by the party selling under the trust deed.</p> <p>6. Fiduciary—purchasing at party's own sale. Where the property of a coal company was sold under a deed of trust given by the company, and, after a sum sufficient to satisfy the trust deed was realized, the remaining property was also sold, by the consent and direction of the directors, and they became the purchasers of all the property at such sale: Reid, that the sale, after enough was raised to paj’ the debts secured by the trust deed, was void, because the directors as to such property were the vendors, and they could not purchase of themselves or at a sale made by their authority.</p> <p>7. Subrogation. Where the directors of an incorporated company purchased all the property of the company at a sale under a deed of trust, the main part of which was sold first in satisfaction of the debts secured, and the balance, by their direction, to realize money to pay other indebtedness not secured, and which was so applied by them, while it was held that the sale as to the last was void, yet, on bill by the original stockholders against the directors and the new corporation formed by them, to' set aside the sale, it was .also held, that the directors, having paid the debts of the old company, were entitled in equity to be subrogated to the rights of the creditors whose debts they paid, and that an account should be taken of the value of such property so sold after satisfaction of the trust deed, and the balance, after deducting the amount paid by them on the debts, should be taken as a fund for distribution among the stockholders of the original company.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill in chancery, filed by Janies McNabney, James Hood and Robert Hood, against Samuel D. Porter, Philip C. Taylor and Alexander M. Wilson, to remove a cloud from the title to a certain'half section of land claimed by the complainants.

Charles S. Zane, Judge, presiding. This was a creditor’s bill, filed by James Phillips against Alfred A. North and America North, his wife. The facts of the case are stated in the opinion of the court.

Lyman Lacey, Judge, presiding. This was a bill in chancery, filed by George W. Kennard against J. W. Jefferson, the First National Bank of Champaign, and -William Howard. The object of the bill and facts of the case appear in the opinion. Jefferson alone appealed.

Charles S. Zane, Judge, presiding. This was a petition for a writ of certiorari, filed by George Carpenter against Elisha C. Jennings and others, commissioners of highways of the town of Springfield, to review their proceedings in laying out a highway.

Clair county; the Hon. William H. Sxydkb, Judge, presiding. This was a bill for partition, filed October 7, 1872, by Martha L. Padfield, and Hezekiah Pad field, her husband, against William Nichols, Nancy Canada and John W. Canada. The land was owned by George Nichols at the time of his death, which was in 1833. He left surviving him only five heirs, to-wit: James Nichols, Thomas Nichols, William Nichols (the defendant), Elizabeth Nichols and Lucinda Nichols.

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p> <p>This was a bill in chancery, exhibited by Samuel Marfield against Richard Clark and Frederick Miller.</p>

Lyman Lacey, Judge, presiding. This was an action of assumpsit, by John P. Adkins against John A. Brahm and William G. Greene, bankers, to recover the amount of a certain deposit. On the trial the plaintiff offered in evidence a paper, or memorandum, which is as follows: “ Brahm & Greene, Bankers. Petersburg, III., May 12th, 1873.

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

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

Zane, Judge, presiding. This was an application by the appellee, as county collector of Sangamon county, to obtain judgment against certain lands for taxes. The appellant filed objections to the rendition of judgment against his lands, which were overruled, and judgment rendered. He thereupon removed the case to the circuit court by appeal. The latter court dismissed his appeal, and from that order this appeal'is prosecuted.

<p>1. Married woman—what will be regarded her sole and separate property. Where real estate was conveyed to a married woman in 1803, although the husband may have furnished the purchase money, it was held, that the title became as completely vested in the wife as her sole and separate property, as if it had been purchased with money derived from a stranger, and with which he had no connection, and that the husband had no estate therein during the coverture.</p> <p>2. Parties at law—injury to real estate. Where a husband and wife are in the actual possession of land which is the sole and separate property of the latter, they may recover jointly for an injury to their possession; but for an injury to the reversion, the wife alone must sue.</p> <p>3. Same—injury to the possession of land. The owner of the fee of land can not maintain an action to recover damages done to the possession of the property while in the occupancy of a tenant. He can recover only for injuries affecting the reversion.</p> <p>4. Measure op damages.—to building erected after the construction, of railroad on the lot. Where, after the location and construction of a railroad over a portion of a lot, the owner erected a dwelling house upon the lot, in close proximity to the road, and occupied the same as a residence, it. was held, that the owner, having built the house with full knowledge that it would be affected by the road, could not, in an action against the railway company, recover for the loss which he thus knowingly and voluntarily incurred by building the house near the railroad, but that, so far as the house sustained a direct physical injury by the company, which it was its duty to avoid, as against all adjacent property, the owner was entitled to recover.</p>

<p>1. Evidence—cross-examination. On the trial of an action for assaulting and beating- the plaintiff", the defendant, on the cross-examination of some of plaintiff’s witnesses, asked them to state the habits of the plaintiff" as to sobriety, prior to and since his injury, to which the court sustained objections: Held, that the decision was proper, as the proof sought was not proper to be .called out on cross-examination.</p> <p>2. Same—Mbits of plaintiff for sobriety. In an action to recover damages for an assault and beating of the plaintiff", producing a severe, if not permanent, injury, proof of the habits of the plaintiff for sobriety prior to the injury affords no justification, and when proposed without any explanation, or offer to follow it with proof that such habits contributed to the sufferings and injury of the plaintiff", it is not error to exclude the same.</p> <p>3. Exemplary damages. Exemplary or vindictive damages may be given where the act complained of is committed or accompanied with malice, violence, oppression, or wanton recklessness. In an action for an assault and battery, it is therefore no error to refuse an instruction that the plaintiff can not recover exemplary damages, unless the assault was malicious.</p> <p>4. Even if an assault is made with considerable provocation, and without malice, yet, if it is of a wanton, gross and outrageous character, the party assaulted may recover exemplary damages.</p> <p>5. Instruction. An instruction should be based upon evidence. In an action for an assault and battery it is no error to refuse to instruct the j ury not to assess exemplary damages, if the assault was made with considerable provocation and without malice, where there is no proof tending to show any provocation.</p> <p>6. It is not error to refuse an instruction which singles out one fact in the case and brings it prominently before the jury, or has no direct bearing on the real facts of the case.</p> <p>7. Excessive damages—assault and, battery. Where the proof showed that the defendant assaulted the plaintiff in a brutal manner, striking a number of heavy blows upon the head with a heavy padlock, to which was attached a chain eight or ten inches long, without any reasonable cause or palliating circumstances, producing a severe and dangerous illness for a number of weeks, and possibly inflicting a permanent injury, it was held, that $3750 damages could not be regarded as excessive.</p>

James C. Allen, Judge, presiding. This was a bill in chancery, filed by Richard H. Pearce, against Frederick Pearce and Martha Pearce, for a partnership account. The facts of the case are stated in the opinion.

<p>1. Purchaser—when protected against equitable title. Where the United States, after the sale of a tract of land and the giving of a receipt of the receiver for the purchase money, conveyed the same land with others to the State, and the State to the county in which the same was located, and the county sold and conveyed the same for a valuable consideration paid, after -which the same passed through several bona fide purchasers, who had no notice whatever of the equitable rights of the party claiming under the purchase from the government, it was held, that the equitable title coúld not prevail over the junior equity which was united with the legal title.</p> <p>2. Notice—entry on tax books in county clerk's office. The entry of lands sold by the United States upon the land book in the county clerk’s ¡office, being required only for the purposes of taxation, affords no confetructive notice of the facts appearing therefrom to subsequent purchasers.</p>

<p>- Chattel mortgage—mortgagee’s right to reduce the pi’operty to possession. A party leasing a hotel, gave the landlord .a chattel mortgage on her furniture, bedding, etc., to secure the payment of the rent. It provided that the mortgagor should retain possession until default in payment, hut authorized the mortgagee to take possession at any time he should think the property was in danger of being sold, removed, etc. The rent was regularly paid, but the mortgagee, without any cause to believe the property was in danger of being sold or removed, replevied the same, and, on the trial, did not testify that he even believed such danger existed: Held, that he was not entitled to recover, and that, before he could take possession, he must have had a reasonable apprehension that the property would be sold or removed.</p>

C. B. Smith, Judge, presiding. This was a creditors’ bill, filed by Elias Kost and others, creditors of the First National Bank of Decatur, against Otis L. Wheelock and others, stockholders of such bank. The opinion of the court states the material facts of the case. Otis L. Wheelock alone appealed from the decree below. .

<p>1 Practice—amendment as to parties' names. Where there was a misr take in a claim filed in the county court against the estate of a deceased guardian, by the wards, in respect to the name of one of the wards, it was held, that the name might properly be changed to the true one, on appeal in the circuit, court, under the Practice act of 1872.</p> <p>2. Evidence—sufficiency of proof of death. Where the only proof of a person’s death was the statement of a witness, that a sister of the person said such person “married a river man. and went on a boat, and the boat blew up and she got killed:” Held, that while the evidence might perhaps justify a finding in favor of the person’s death, yet it was not sufficient to set aside a contraiw finding.</p> <p>3. Limitation—claim against guardian's estate. A claim against a guardian’s estate, for moneys coming into his hands belonging to his wards, is not barred within five years after the majority of the wards. The claim will not be barred so long as an action may be brought upon the guardian’s bond, to enforce its recovery.</p>

Cyrus Epler, Judge, presiding. This was an action of replevin, brought by appellees against William' H. Broadwell, sheriff of Morgan county, for the recovery of a lot of wheat. The wheat had been levied upon by the defendant, as sheriff, under an execution against Edward P. Fox, with whom it was stored. On the trial, a verdict and judgment were had in favor of the plaintiffs, and the defendant appealed. The material facts of the case will appear in the opinion.

<p>1. Instruction—must refer to the evidence fafr the facts. It would be clearly erroneous to instruct the jury in such a manner that they would be at liberty to believe certain facts, important to a proper decision of the cause, from any source other than the evidence.</p> <p>% But where a jury are instructed, if certain facts are true, provided they further believe, from the evidence, certain other facts exist, they should find, etc., a jury of ordinary intelligence will understand that they must believe the facts first enumerated from the evidence, as well as those last mentioned.</p> <p>3. Same — when correct as a series. It is the duty of the jury to consider all the instructions together; and when this court can see that an instruction in the series, although not stating the law correctly, is qualified by others, so that the jury were not likely to have been misled, the error will be obviated.</p> <p>4. Same—must not he broader t7ian t7ie evidence. In a suit by a brake, man to recover damages for a personal injury, sustained while in the discharge of his duty as a servant, in consequence of a defective ladder on a freight car, the court refused to instruct the jury, for the company, that. it. -was the duty of the plaintiff to have noticed any visible defect in the ladder, and to have reported it to the company; and if there was a visible (lefec.1 in the ladder, and the plaintiff failed to report it. to the company, lie could not recover on account of such defect. The evidence failed to show that the defect, was visible, or that the plaintiff ever saw the car before the day of the accident: Held, that there was no error in the refusal, as there was no evidence to justify giving the same.</p> <p>5. Master and servant—injury to the latter—liability of the master. Where a brakeman of a railway company is injured while in the service of the company, in consequence of a defective ladder, which, giving way, caused him to fall, etc., the company will not be liable to such servant, unless it had notice of the defect, or might have had such knowledge by the exercise of a proper degree of diligence and care.</p> <p>6. Where a brakeman upon a railroad, while obeying the order of a conductor of a freight train, in uncoupling- a car from the train, and attempting to climb upon the car after uncoupling the same, in consequence of a defective round in the ladder, fell, and was run over by several cars, there being no proof that the defect in the ladder was visible, or that the brakeman ever saw the car before, it was held, that the company was liable to him for the injury he sustained, it being the duty of the company to furnish safe materials and structures, and the brakeman having no connection in placing the defective car upon the roail.</p> <p>7. A servant of a railway company will not be precluded from recovering for a personal injury, sustained while in the discharge of his duties, in consequence of the act of a superior servant in another department of the service. Thus, a brakeman, who has nothing- to do with the placing of a defective freight car upon the road, will not be responsible for the acts of those providing such a car, and may recover for an injury sustained by him, caused by the use of the same, without negligence on his part.</p> <p>8. Judgment—a/rresting for informality. The entry of judgment in the name of Ingram, instead of Ingraham, is such an .irregularity that can not be taken advantage of under the Statute of Amendments and Jeofails.</p>

<p>1. Offices— compensation to officer for services incident to his office. Where a person was appointed by city authorities as pound-master, and the compensation for his services as such fixed, and he was also appointed a special policeman, merely as an incident to the first office, and informed that he would receive no pay in the latter capacity, it was held, that he was not entitled to recover anything from the city for services as policeman.</p> <p>2. A person accepting a public office with a fixed salary, is bound to perforin the duties of the office for the salary. He can not legally claim additional compensation for the discharge of those duties, even though subsequently imposed by statute or ordinance, and the salary may be inadequate.</p> <p>3. Sam's—promise to pay extra compensation not binding. A promise to pay an officer an extra fee or sum beyond that fixed by law, is not binding-, though he renders services and exercises a degree of diligence greater than could legally have been required of him.</p>

Cyrus Epler, Judge, presiding. This was a-bill in chancery, originally filed by Elizabeth Ewing, in her lifetime, against Parker Gardner and Joseph Gardner, for a new trial in an action at law. Upon the death of the complainant, Henry Bell, her administrator, was substituted as complainant. The court below dismissed the bill, and the administrator appealed.

<p>1. Practice—in a proceeding under repealed statute, the practice is governed, by the laws invoice. Allhough prosecutions and rights of action under repealed statutes are preserved, yet they must be carried on, after the repealing law takes effect, in conformity with the law then in force. The repealed statute furnishes the right of action or prosecution, but not the practice or mode of procedure.</p> <p>2. Therefore, where an indictment was found before the R. S. of 1874 took effect, and which repealed the statute under which the indictment was found, saving, however, the right to proceed for any violation of the repealed statute, it was held, that the laws of 1874 governed as to the manner of applying for a change of venue.</p> <p>3. Intoxicating liquor—sale to minor. Upon indictment for selling intoxicating liquor to a. minor, without authority from his parents or guardian, it does not matter that the defendant did not know that such person was a minor. He is bound to know whether such person is a minor or not.</p>

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

Writ of Error to the Circuit Court of Fulton county; the Hon. Chauncey L. Higbee, Judge, presiding. This was an action on the case, by Laura A. Dickson against the Chicago, Burlington and Quincy Railroad Company, to recover for a personal injury. The facts involved in the decision are stated in the opinion.

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

Cyrus Epler, Judge, presiding. This was an action of assumpsit, brought by Francis G. Burt against William W. Chapman. The declaration contained only the common counts. The suit was originally brought in Scott county, and taken by change of venue to Morgan county. There were two trials had, in the first, the jury being unable to agree. The second trial resulted in a verdict in favor of the plaintiff for $640.26, upon which the court rendered judgment. The defendant appealed.

Charles S. Zane, Judge, presiding. This was a bill in chancery, by George McDaniel against Benjamin F. Fox and Lorenzo D. Can trail, for an injunction. The material facts of the case are stated in the opinion of the court.

Cyrus Epler, Judge, presiding. This was a proceeding by scire facias, commenced by Emily Chestnut, against Alexander R. Chestnut, upon a supposed record of an order for the payment of temporary alimony.

<p>1. Promissory note—payment must not depend on a contingency. T o constitute a valid promissory note, it must be payable at some time or other, though it may be uncertain when that time will come. When payable on a contingency, it makes no difference that the contingency does, in fact, happen afterward, on which the payment is to become absolute, for its character as a promissory note can not depend upon future events, hut solely upon its character when executed.</p> <p>3. A written promise to pay a certain sum of money to a railroad company, or order, in such installments and at such times as the directors of the company may, front time to time, assess or require, is a valid, negotiable promissory note, being, in effect, pat-able on demand, or in installments on demand.</p>

Cyrus Epler, Judge, presiding. This was an action on the case, brought by Edward H. Williams against The Toledo, Wabash and Western Bailway Company, to recover damages for an alleged wrongful assaulting, beating, etc., of the plaintiff by a servant of the defendant. A trial was had, which resulted in a verdict and judgment in favor of plaintiff for $50.

Charles S. Zane, Judge, presiding. This was a bill in chancery, by Simeon Rider against Philander C. Huggins.

John Burns, Judge, presiding. This was an action on the case, by Michael J. Flanigan, against the Indianapolis, Bloomington and-Western Bailroad Company. The opinion of the court states the nature and facts of the case - with sufficient fullness. The plaintiff recovered judgment in the circuit court, for the sum of $6000, from which the defendant appealed.

<p>Appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.</p> <p>This was an action of assumpsit, by Edward A. Jones against James Millikin, to recover for the pasturage of cattle.</p>

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

O. L. Davis, Judge, presiding. This was an action on the case, by Martha. Smith, against George L. Horn. The opinion of the court states the material facts of the case. The jury found for the plaintiff, and assessed her damages at $550, upon which the court rendered judgment.

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of assumpsit, by John F. Anderson against the Teutonia Life Insurance Company, upon a policy of insurance. The material facts of the case are stated in the opinion of the court.

C. B. Smith, Judge, presiding. This was an action, by Louisa Humphrey against John McEvoy, originally brought before a justice of the peace, and taken by appeal to the circuit court. On a trial in the latter court, the jury found for the plaintiff, and assessed her damages at $200, upon which the court rendered judgment. The opinion states the substance of the other material facts.

C. B. Smith, Judge, presiding. This was an action on the case, bv Mary O’Connor, administratrix of the estate of Timothy O’Connor, deceased, against the Toledo, Wabash and Western Railway Company. The material'facts appear in the opinion.

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

Thomas F. Tipton, Judge, presiding. This bill was filed by Joseph J. Kelly, as a stockholder in the Gilman. Clinton and Springfield Eailroad Company, on his own behalf and on behalf of other stockholders. Afterwards, certain towns,hips which had made subscriptions to the capital stock of the company, became parties complainant.

Charles S. Zane, Judge presiding. This was a petition for a mandamus, filed by the Springfield and Illinois Southeastern Railway Company, for the use of Cutler, Dodge & Co., against the board of county commissioners of Cass county. The opinion sufficiently states the facts of the case. The cause was originally brought in the circuit court of Cass county, and the venue changed to Sangamon county, where the application was denied.

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

Writ of Error to the Circuit Court of Shelby county; the Hon. Horatio M. Vandeveer, Judge, presiding. This was an action of covenant, by plaintiffs in error against defendant in error.

Lyman Lacey, Judge, presiding. This was an action on the case, by the appellee, against the ’ appellant as a common carrier, for not furnishing transportation for a lot of corn. The opinion of the court states the material facts of the case.

Thomas F. Tipton, Judge, presiding. This was a bill for a specific performance of a contract for the sale of land, filed by Lewis Mitchell against George ,E. King and Simon S. Brucker. The facts necessary to an understanding of the case are stated in the opinion of the court.

Tazewell B. Tanner, Judge, presiding. This was a prosecution by the city of Mt. Vernon against William Byars, for a violation of an ordinance by selling intoxicating liquors to minors, without the written order of their parents or guardians. The opinion of the court states the essential facts of the case.

Amos Watts, Judge, presiding. This was a claim, presented in the county court of Clinton county, by George Clark, administrator of the estate of Thomas Moore, deceased, against the estate of John Brewster, deceased, of which the appellants, William Steele and Nancy Brewster, were the administrators. The opinion of the court gives a substantial statement of the principal facts of the case.

Writ of Error to the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding. This was a bill in chancery, filed by Washington Duvall and Mary Duvall, his wife, against George Stone, Julia Stone, Pearly Stone and Bissell Davis, heirs at law of Mary Stone, deceased, and William Stone, husband of Mary Stone, to set aside a deed made by the complainants to said Mary Stone. The material facts of the case are set forth in the opinion of the court.

Writ op Error from the Circuit Court of Jackson county; the Hon. M. C. Crawford, Judge, presiding. This was an indictment against Joseph Honnard, for manslaughter, in causing the death of Jane Stevenson. The opinion of the court states the facts of the case.

<p>Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. County court—power to bind county by their declarations. The members of the county court can only hind their count)'-, in matters of claims, when acting- as a court, and their records are the only admissible evidence of their judicial acts.</p> <p>31 Evidence—parol, to shoio promise of county court. Where a party made out a claim against a county, verified by his oath, charging- only ig4 per day for his services as county superintendent, which the county court allowed, and issued orders therefor, it was held, in a suit by such party against the county, to recover the other dollar per day given by law, that parol evidence was not admissible to show that the court agreed with him to par him such additional per diem if they became satisfied he was entitled thereto, and that he received the §4 per day under protest.</p> <p>8. Former recovery—whether a bar. Although an officer may be entitled to $5 per day for services, yet if he makes out a bill of the same at §4 per day, verified by his oath, which is allowed, and paid hv the county hoard, he will be precluded from afterwards insisting- upon payment of the other dollar per day.</p>

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

Writ of Error to the Circuit Court of Jasper county; the Hon. James C. Allen, Judge, presiding. This was a scire facias upon a forfeited recognizance, against William McElwee and Fuller Nigh.

<p>Appeal from the County Court of Jackson county; the Hon. Charles H. Layman, Judge, presiding.</p>

Amos Watts, Judge, presiding. This was a bill in chancery, by William S. Hay against George Baugh and John Merklebach. to set aside and cancel a sale of real.estate on execution, sheriff’s certificate of purchase and sheriff’s deed thereon, for injunction and for general relief. The material facts of the case appear in the opinion.

<p>Writ of Error to the Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding.</p>

Tazewell B. Tanner, Judge, presiding. This was a bill in chancery, by Mary A. Trotter, against John Trotter, Zadoc C. Reynolds, Calvin P. Thomasson, William J. Sailor, and Edward Bonham, for a separate maintenance, and for an injunction.

<p>1. Replevin—when demand and refusal necessa/i'y. The law is well settled that, where a party obtains the possession of property lawfully, an action of replevin can not he maintained to recover it until a demand lias been made and the possession refused.</p> <p>3. Where goods are shipped by rail, the railway company, having obtained possession lawfully, will have the right to hold, them until the freight actually due is paid or tendered, and a demand is made. If too much freight is charged, the owner should tender the proper amount before bringing replevin. The tender is too late after the suit is commenced.</p>

Amos Watts, Judge, presiding. This was a bill in equity, by John Sauter against Andrew J. Eisenmeyer, to correct a mistake in the award of arbitrators. The opinion of the court states the facts of the case. The deposition of one of the arbitrators, taken before the master and reported by him, was not signed by the witness.

Writ of Error to the Circuit Court of Washington county; the Hon. William H. Snyder, Judge, presiding. This was a suit commenced by attachment, and brought by the people of the State of Illinois, for the use of Mary L. Stark, against John Reitz and Carl A. Harbke.

<p>1. Services—whether damages allowed were excessive. Where a party performed services for a person, about two years before his death, in caring for "and nursing him, the proof showing that the services were performed without any special contract as to the compensation; that the services were invaluable; that the deceased was, during the time, afflicted with a cancer in the throat, and that the smell emitted from the throat was very offensive, toward the latter part of the life of the deceased; that,except when on visits to New York City and St. Louis, with the deceased, and the last few months, the services rendered did not prevent the plaintiff from looking after his own business; that the deceased had paid and loaned the plaintiff about §3000 before his death, it was held, in a suit by the plaintiff to recover against the estate for his services, that a verdict in' favor of the plaintiff for §1420.60 was excessive, and the judgment was reversed for that reason.</p> <p>2. Contract — whether certain proposed offers were evidence of one. Where a party, afflicted with a cancer, proposed that, if a party who was nursing and taking care of him. and who rendered invaluable service, would quit the liquor trade, and form a partnership with another party, in the dry goods business, he would let him have $8000 or §10,000 to purchase an interest in the business, which was never consummated, and it appeared there was an intimate friendship between them, it was held, that such proposal was not evidence of a special contract to pay such sum for the party’s services.</p>

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

<p>1. Exceptions—allowed in cx-iminal cases. Exceptions may be taken in criminal cases, and bills of exceptions shall be signed and sealed by the judge and entered of record, and error may be assigned thereon as in civil cases.</p> <p>2. Appeal in criminal cases. But no provision seems to be -made for an appeal in criminal cases, and in the absence of any statute expressly allowing if, a writ of error is the only mode by which a case of that character can be brought to this court.</p> <p>3. Same—waiver of objection. On appeal to this court in a criminal case, if there should be an appearance or joinder in error by-the people, it might, perhaps, be considered as pending on error, and be taken for decision.</p>

<p>Appeal from the Circuit Court of Saline county; the Hon. Monroe C. Crawford, Judge, presiding.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill in chancery, bv the Ohio and Mississippi Railway Company against the town of Lebanon, J. W. Hughes, sheriff and collector, and school districts Nos. 3, 4, 6 and 7, in township 2 north, range 6 west, to restrain the collection of certain back taxes levied by said town and school districts upon the property of the complainant.

Writ or Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding. This was a claim filed by Sarah Painter against the estate of Ruth McLaughlin, deceased, for services rendered the deceased both prior to and since the act of 1869. giving married women their earnings. The claim was originally filed in the county court, and taken by appeal to the circuit court. The claimant was a married woman.

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

<p>1. Forcible detainer—in case of sale under trust deed. An action of forcible detainer lies against a part)-- in possession of land under the grantor in a deed of trust, by the purchaser at the trustee’s sale, and a demand of possession upon such occupant will be sufficient.</p> <p>3. Trust deed—whether sale is to be regarded as made under, or under decree of court. In a proceeding in equity to appoint a trustee to execute the power of sale in a trust deed, where the decree finds the amount due and appoints a trustee to sell, the sale will not be regarded as made under a decree of foreclosure, but under the trust deed.</p> <p>3. Same—validity of decree appointing new trustee, in a collateral proceeding. Any defect of parties in a bill in equity for the appointment of a new trustee in the place of one deceased, to execute a power of sale in a trust deed, amounts only to error, and can not be taken advantage of in a collateral proceeding.</p> <p>4. Same—as to the place of sale. If one deed of trust requires the property to be sold at A, and subsequent trust deeds, upon the same property, requires the sale to be at B, a sale by a trustee appointed by the court to execute the trusts, made at B,when the proceeds of the sale do not amount, to more than the debt secured by the subsequent ones, will be good and valid.</p> <p>5. Trustee—right to sue in his name for possession of property. Where land sold under deeds of trust is convej^ed to an administrator in trust for the heirs of his intestate, the debts secured belonging to the estate, the administrator may maintain forcible detainer, in his name, against one withholding the possession. The defendant iu such suit can not he heard to insist that the suit should be in the names of the heirs.</p> <p>6. Forcible detainer—variance as to defendant's possession. The defendant in an action of forcible detainer for a tract of land can not defeat the same by proof that he was in possession of only the house and garden situated on the tract.</p> <p>7. Deed or trust—as to notice of sale. Where a deed of-trust required notice of any sale thereunder to be posted in four of the most public places in the county, and two of the notices were posted at different places in the same town, which it was insisted vitiated the sale: Seld, that, even if the objection was well taken, it could only be availed of in equity to set aside the sale, and could not be availed of in an action at law.</p> <p>8. Instructions—errors in, that work no harm. Even if an instruction is technically defective, yet, where it can be seen that it worked no harm, it will afford no ground of reversal.</p>

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

Cyrus Epler, Judge, presiding. This iras an action of assumpsit, brought by the City National Bank of Chicago, against Prentiss D. Cheney, upon a promissory note given by the defendant to John Johnston, and by him assigned to the plaintiff. The material facts and questions will appear in the opinion of the court.

<p>Amendment—right to amend affidavit in replevin. A plaintiff in replevin, has the right to amend liis affidavit in the action so as to make it conform to the statute, and the fact that leave was granted to amend the same before the justice of the peace, but not done, affords no reason for refusing leave to amend on appeal.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of trespass, brought by Charles -Belm against Adam Schaumtœffel, before a justice of the peace, and, by appeal, taken to the circuit court. On a trial, the plaintiff recovered judgment for $175, and costs. The defendant appealed.

William H. Snyder, Judge, presiding. This was an action of trespass, by Henry Hecht, against Henry Kuhlman. The opinion of the court contains a statement of the facts.

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

William H. Snyder, Judge, presiding. This was an action of forcible detainer, brought by John Dunstedter against Jacob Dunstedter, to recover a certain part of a lot, including a barn situated thereon, and the cause taken by appeal to the circuit court. On the trial of the appeal by the court, without a jury, judgment was rendered in favor of the defendant, from which the plaintiff appealed. The opinion of the court states the substance of the facts.

Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of trespass, by John Schumacher against the Cairo and St. Louis Railroad Company. The opinion of the court presents the facts of the case.

<p>1. Cloud upon title — tax deed—limitation. Where a part)', under a tax deed to land, paid all taxes assessed thereon for seven successive years, during which time the land was vacant and unoccupied, and then took possession, it was held, that a court of equity could not set aside such tax title at the instance of the former owner, on the ground of irregularities in acquiring the same, but must leave the party to try the question of title in a court of law.</p> <p>2. Limitation—under act of 1839, to vacant land. Where a parti', under a deed made on a sale of land for taxes, which purported to convey title, pays all taxes assessed thereon for seven successive years, and then takes possession, his title will be valid against all persons, except such as may be under statutory disability-, even though his title, standing by itself, may be regarded invalid.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill in chancery, by Lovingston, against Short, to enjoin a sale, under a trust deed, of two tracts of land given to secure the balance of the purchase money, and to rescind the sale, as to one of the tracts, on account of alleged defects in the title thereof, and to allow a corresponding reduction in the price to be paid.

James C. Allen, Judge, presiding. This was an action on the case, brought by Caroline Bell against Michael Beget. The opinion of the court presents all the material facts of the case. The defendant, on the trial, was sworn, and offered to testify in relation to the sale of the liquor which caused the death of plaintiff’s husband, Thompson Bell.

James C. Allen, Judge, presiding. This was a claim filed by P. S. McLaughlin, and J. H. Maxwell, against the estate of John M. Bennett, deceased. The opinion of the court states the nature and facts of the case.

Amos Watts, Judge, presiding. This was an action of assumpsit, by Harvey W. Johnson against the appellant, on an insurance policy, arising out of an alleged non-compliance with the terms of the policy. The opinion of the court states the nature of the case, and the material facts involved in it.

Amos Watts, Judge, presiding. This ivas an action brought by Ann E. Ward against August Krug, for malicious prosecution, false imprisonment, and slander. A trial ivas had. resulting in a verdict and judgment in favor of the plaintiff, of $2750 and costs. The other material facts of the case appear in the opinion of the court.

Amos Watts, Judge, presiding. This was a claim presented by John A. Burke, to the county board of Monroe county, for expenses incurred for a pauper, residing in the town of Waterloo. The board refused to allow the same, on the ground the pauper was not a county charge, but was chargeable to the town of Waterloo. The claimant appealed from the decision to the circuit court.

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of ejectment, by Henry E. Schrader, against John Peach, for the recovery of a tract of land. The opinion of the court contains a sufficient statement of the facts.

Writ of Error to the Circuit Court of Johnson county. This was an action of assumpsit, by Abram D. Williams, against John C. Clymore, aided by an attachment. The opinion of the court states the facts of the case.

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

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

Amos Watts, Judge, presiding. This was an action of assumpsit, by Haney E. Reddick against the School Directors of District Ho. 5, in Township 1 Horth, Range 1 West, in Clinton county, to recover for wages as a school teacher. The court below found for the plaintiff. The opinion sufficiently states the nature of the case.

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

James C. Allen, Judge, presiding. This was a bill in chancery, filed by Julia A. Marlow, against Austin Marlow, her husband, and Commodore C. Symonds, William A. Forth, Cyrus Howard, George Anderson and James Marlow, his securities, to enforce the payment . of certain promissory notes. The opinion of the court presents the material facts of the case.

<p>1. Replevin bond—not for officer's protection only. Under our statute, the object of a replevin bond is not merety to indemnify the officer executing the replevin writ, but also to furnish an additional remedy to the defendant in case the plaintiff fails to maintain his suit.</p> <p>2. Estoppel—to deny jurisdiction of court. Where possession of rails in a string of fence is obtained on replevin before a justice of the peace, the plaintiff in that suit insisting that the justice had jurisdiction, even if the justice had not jurisdiction of the subject matter of the suit the obligors in the replevin bond will be estopped from urging such fact in defense in a suit on the same. They will be estopped by their own act and admission.</p> <p>3. ' Pebsonal pbopebty. Rails, as well as a string of fence, may be personal property.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This .was a suit brought by Gustavos Hilgard, against Isaac Daniels, before a justice of the peace of St. Clair county, to recover the cost of making a map or plan of a coal mine operated by the defendant as superintendent.

■ Appeal front the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding. This was an information, in the nature of a quo warranto, on the relation of Geo. W. Brackett, against Daniel McGowan. The material facts of the case appear in the opinion of the court.