Volume 78 — Illinois Reports

Tazewell B. Tanner, Judge, presiding. This was a prosecution, by the city of Mt. Vernon, against William Byars, for the selling of intoxicating liquors in said city, without a license to keep a grocery, in violation of an ordinance of the city.

<p>Practice—trial with demurrer undecided. Where parties go to trial by consent, with a demurrer to a count of the declaration undecided, it will be no cause for the reversal of the judgment.</p>

<p>1. Widow—has no right to sha/i'e in personal property disposed of by her husband in his lifetime. Any disposition of personal property and credits by a husband, in good faith, where no right or interest is reserved to Mm, either present or ultimate, though made to defeat the rights- of his wife, will be good against her.</p> <p>2. Where a husband transferred to one of his sons notes and evidences of indebtedness to the amount of §60,000, under an agreement that he was to have one-third, and at the donor’s death the son should deliver the balance to certain trustees for the donor’s other two children, in consideration of which the son was to pay his father §2000 annually, while he lived, for support: Held, that the transfer .was based upon a sufficient consideration, and placed the property beyond the father’s reach, and that Ms widow could not claim any dower in the same.</p> <p>3. If the husband had retained, the right to control the property and" resume the same at pleasure, the gift would have been in fraud of the rights of his wife, and, on his death, she could have recovered her share in the same, as given by the statute.</p> <p>4. There is nothing in the statute respecting estates of deceased persons, that in the slightest degree prevents a husband from disposing of his personal property free from any claim of his wife, whether by sale, gift to his children, or otherwise, in Ms lifetime.</p>

<p>1. Default—setting aside, a matter of discretion.. The setting aside of a default in a chancery suit is a matter of discretion, the exercise of which by the court can not be inquired into by this court on appeal or writ of error.</p> <p>2. Where the return of service was regular, in a suit to foreclose a mortgage, and one of the defendants, after default, decree of foreclosure, sale and confirmation thereof, appeared and asked to have the default set aside, and he be allowed to answer, on his affidavit showing a variance between the original summons and the copy delivered by the officer: Meld: that the motion to set aside the default was properly refused.</p>

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

<p>1. Contbact—right to rescind for omission of other party. A slight or partial neglect, on the part of one of the contracting parties, to observe some of the terms or conditions of the contract, will not justify the other party at once to abandon or rescind the same.</p> <p>2. In order to justify an abandonment of a contract, and the proper remedy growing out of it, the failure of the opposite party must be a total one. The object of the contract must have been defeated or rendered unattainable by his misconduct or default.</p> <p>3. For partial dereliction and non-compliance in matters not necessarily of first importance to the accomplishment of the object of the contract, the party injured must seek his remedy upon the stipulations of the contract itself.</p> <p>4. Thus, where a party sold a farm, and agreed to build a barn on the • premises, and deliver possession by a given day, it was held, that a failure to have the barn completed at the time the second payment fell due, and before the time of delivery of possession, did not justify the purchaser in refusing payment, and authorize him to recover back the sum paid at the making of the contract. Neither would a refusal to give a receipt for the second payment justify a rescission by the purchaser, even if one were required by the contract.</p>

Amos Watts, Judge, presiding. This was a claim, presented by Mary Hadden against the estate of Benjamin Hudson, deceased. The claim was allowed in the county court, from which judgment the administrators, Dwyer Tracey and John Phillips, appealed to the circuit court. On the trial of the appeal, the claimant recovered judgment for $795.67, and costs of suit, to reverse which the administrators bring the record to this court by appeal.

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

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

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

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

<p>1. Instructions. It is improper to give an instruction where there is no evidence to which it is applicable,</p> <p>2. Consideration—settlement of a disputed claim. Where there was a claim made by one party that a deed for land, executed by him to another, was only in the nature of a security for a debt, and that he was entitled to the surplus of the proceeds of- the sale of the land, over the amount of his indebtedness, and the other party claimed that the deed was absolute, and not by way of security, and the parties settled the controversy by dividing the surplus, it was held, that there was sufficient consideration to support the settlement.</p>

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

Cyrus Epler, Judge, presiding. The opinion of the court states, with sufficient fullness, the nature and facts of this case. The court below decreed the relief sought.

<p>Constitutional law—making railroad company liable for no violation of duty. The act of 1855 making railroad companies liable for all expenses of the coroner and his inquest, and the burial of all persons who may die on its cars, or who may be killed by collision, or other accident occurring to such cars, or otherwise, is unconstitutional and void, so far as it attempts to make such companies liable in cases where they have violated no lawr, or have been guilty of no negligence on their part.</p>

William H. Snyder, Judge, presiding. This was a petition filed by Gotlieb Neidenberger and J. George Gerding, partners composing the firm of Neidenberger & Co., against the Board of Education of District No. 3, in town. 3 north, range 8 west of the third principal meridian, for the enforcement of a mechanic’s lien for materials furnished by petitioners, as sub-contractors of Wm. H. Phillips & Bro.

<p>1. Landlord’s lien—not dependent 'upon a distress. A landlord’s lien upon crops growing or grown upon the demised premises in any year, for rent that shall accrue for such year, does not depend upon the levy of a distress warrant, but is given by the statute, so that an attaching creditor can not, by bringing an attachment before the issuing of the distress warrant, gain any precedence.</p> <p>2. Trover and trespass—what act will make a party liable for a conversion. It is not necessary, to render one liable in trespass or trover, that there should be an appropriation of the thing to the party’s own use or beneficial enjoyment. The disposing, or assuming to dispose, of another man’s goods, without hi's authority, is a conversion of them.</p> <p>3. Same—liability of bidder who transfers his bid,. Where a creditor of a tenant attached the crops of the latter, upon which the landlord had a lien for rent, and, after the levy of a distress warrant, purchased the same at the sale under his attachment, and transferred his bid to a third person, who took and disposed of the crops: Held, that the creditor, by bidding off the property and transferring his bid, assumed such control over the property as amounted to a conversion, and rendered him equally liable with his assignee to the landlord for the amount of his lien for rent.</p>

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

Hiram B. Decius, Judge, presiding. This was a bill in chancery, filed by Theresa Phillips, against H. A. Pitts, Marsailles M. Pitts, Aurolius V. Pitts and Flawson D. Pitts, to set aside a sheriff’s sale of a certain lot as a cloud upon complainant’s title. The opinion of the court contains a sufficient statement of the controlling facts of the case. The cause was heard upon the pleadings and proofs, when the court entered a decree dismissing the bill.

<p>1. Injunction—from tewing wp sidewalk and replacing same by city. A bill to enjoin city authorities from tearing up a sidewalk in front of complainant’s premises and replacing the same by a new one, on the ground that, with slight repairs, the old one would answer for several years, and the change would burden the citizens with heavy taxes and assessments, which fails to show whether the city is incorporated, and makes no reference to its charter, is clearly.defective and obnoxious to a demurrer.</p> <p>2. Chancery jurisdiction—remedy at law. A court of equity will not restrain a city and its officers from performing an act which is illegal and unwarranted by law, on the ground that it will necessitate a levy of heavy taxes or special assessments, as the party complaining has an ample remedy at law. In such a case, the tax or assessment will be illegal and void, and its payment can be resisted at law.</p> <p>3. Municipal corporation—when courts will interfere with the exercise of discretionary powers. A city incorporated under the general law has a large discretion as to the opening, grading and repairing of streets and sidewalks, in respect to the time, manner and cost of the same, in the exercise of which its power will not be controlled by the courts, unless there is great abuse operating oppressively upon individuals.</p> <p>4. Where persons or officers are acting within well recognized powers, or exercising a discretionary power, a court of equity has no jurisdiction to interfere, unless the power or discretion is being manifestly abused to the oppression of the citizen.</p>

<p>1. Scire facias—not an ordinary action. A scire facias to revive a judgment is not a suit, within the meaning of the statute prohibiting a plaintiff from suing a defendant out of the county where the latter resides or may be found, but is a judicial writ, founded on a matter of record, and must be issued from the court in which the judgment was rendered.</p> <p>2. Jurisdiction—to send process out of county for service. In scire facias to revive a judgment, or upon a matter of record, the court has jurisdiction to send its process to any county where the defendant may be found, and a plea in abatement, that the defendant does not reside, etc., in such county, is not sustainable.</p> <p>3. Amendment—changing name of plaintiff. A scire facias, by an administrator, to revive a judgment in favor of his intestate, is irregular, if brought in the name of the deceased; but, in such a case, it is proper to allow an amendment, by substituting the name of the administrator as plaintiff.</p>

<p>1. Decree—when not binding on party. A person not made a party, to a proceeding for partition, and who is not served with process, and who does not enter any appearance, is not bound by any decree rendered therein, and his interest or title in the premises will not be affected in the least.</p> <p>2. To bind a party by judicial sentence, he must be made a party to the proceeding, and must have either actual or constructive notice thereof, or enter his appearance.</p> <p>3. Attachment—service or levy essential to jurisdiction. In an attachment before a justice of the peace, where there is no personal service upon the defendant, or levy upon his property, and notice, as required by statute, the justice will have no jurisdiction to adjudicate and render judgment, and any judgment rendered will be a nullity.</p> <p>4. Redemption—under void judgment confers no title. Where a party redeemed land from a sale under an execution issued upon the transcript of a justice’s judgment, in a case where the justice had no jurisdiction, and acquired a sheriff’s deed on a sale under his execution, it was held, that the sale was a nullity, and passed no title whatever, but that the redemption money having been accepted, destroyed the prior sale and left the title to the land in the original owner.</p> <p>5. Limitation—must be pleaded, if relied on. No rule of practice is more firmly settled, than that, to render the Statute of Limitations availing as a defense, it must be set up and relied on by the pleadings; and this rule applies equally in equity and at law.</p> <p>6. Specific performance—contract to convey land in consideration of acts done enhancing value of residue. If the equitable owner of land agrees to convey an interest therein, subject to the approval of the holder of the legal title, to another, if the latter will build a depot and sidetrack near the same, and such party does build the same, at his own expense, with the knowledge of the holder of the legal title, whereby the value of the tract is greatly enhanced, a court of equity will enforce the contract, subject to the rights of the holder of the legal title for any sum due him.</p>

Amos Watts, Judge, presiding. This was an action on the case, by the appellee, against the appellant, to recover damages for personal injuries alleged to have been caused by negligence on the part of the defendant. The opinion of the court gives a statement of the facts. The jury returned a verdict in favor of the plaintiff for $6000, upon which the court rendered judgment, overruling a motion by the defendant for a new trial.

<p>1. Witness—widow a competent witness to protect hmx sepa/rate property. Where the litigation involves the separate property of the wife, she is made a competent witness to protect the same, and the fact that her husband is dead, will not render her incompetent as a witness against his administrator, when her property is replevied in a suit by a party claiming under her, against the administrator of her husband’s estate.</p> <p>' 2. Married women—use of her property by husband. The fact that a married woman allows her husband to have a general use and control over her personal property, such use and control being of a character consistent with their common interests, and the proper enjoyment of it by both, will not make it liable for his debts, or entitle his administrator to claim the same as against her mortgagee.</p>

William H. Snyder, Judge, presiding. This was an action of ejectment, by Irwin Z. Smith against the Chicago and Alton Eailroad Company, to recover certain real estate occupied by the defendant as a right of way. The opinion of the court states the facts of the case sufficiently to an understanding of the points decided.

<p>1. Taxation by municipal corporations. The act of April IS, 1873, authorizing incorporated cities to levy taxes annually, not exceeding three per cent, applies as well to cities incorporated under special charters as to those incorporated under the general act of 1872.</p> <p>2. The act of April 15, 1873, relating to taxation by cities, is not an act amendatory of the general act of 1872 for the incorporation of cities and villages, but is an independent act, applicable to all incorporated cities, whether under the general law or under special charters.</p> <p>3. The proviso to the fifth clause of the first section of the act of April 15,1873, that “ no tax shall be levied under this section unless two-thirds of all the aldermen elected shall vote in favor of the same," does not apply to the whole section, but only to the tax mentioned in such clause.</p> <p>4. The power to levy taxes by a city “for general and contingent expenses, or any other expenses not herein otherwise provided for,” is sufficiently broad to authorize the levy of a tax thereunder to pay ordinary debts.</p> <p>5. Statute—'proviso, how construed. A proviso in' a statute is construed as affecting the paragraph to which it is annexed only, and not to the whole section or act, unless the collocation of the words shows a different intention.</p> <p>6. Injunction—reasonableness of solicitor's fee on dissolution. Where a temporary injunction is dissolved and the bill dismissed on motion, the case involving simply the construction of a statute, the allowance of $200 for solicitor’s fees, in the assessment of damages, will be regarded as too large.</p> <p>7. Chancery—preserving evidence on assessment of damages on dissolving injunction. If the evidence heard upon the assessment of damages, upon dissolution of an injunction, is not preserved in the record, the decree will be reversed. It is not sufficient for the decree to recite that evidence was heard, without showing what facts were proved.</p>

<p>1. Failure of consideration. Where A executed his promissory-note, payable to B, and delivered it to C, for the purpose of having it discounted, and 0 delivered the same to B, but B paid nothing for it: Held, that there was .a failure of consideration, and that B could not recover in a suit on the note against A.</p> <p>2. And the fact that A was indebted to B at the time of giving the note to him, and that B told C to collect the note and give the firm of which B was a member credit for it, will not entitle C to recover on the same, where it appears that the note was not given on account of the indebtedness of A to B.</p>

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

William: H. Snyder, Judge, presiding. This was an action on the case, by the appellee, against the appellant, to recover damages for the killing of plaintiff’s mule, by a train of cars, at a public road crossing. The declaration contains three counts, the first of which charges that the injury was caused by a neglect to ring a bell or sound a whistle within eighty rods of the crossing, as required by law.

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

<p>1. Action—-for money paid, ete. If a party, at the request of a railway company, takes up certificates of indebtedness issued by it to its laborers for work, and to procure board, and to enable boarding house keepers to obtain groceries and provisions for hands engaged in the construction of the road, with an agreement to settle with him for the same, such party will be entitled to recover of the company the amount of such advances.</p> <p>2. Lien—against railroads. The lien given by statute against the property of a railway company is only for materials used, supplies furnished, and for labor performed in constructing, repairing, operating or maintaining the road. The loan of money, or the payment of its creditors, is not embraced in the statute giving the lien.</p> <p>3. Same—no lien exists for money advanced in taking up certificates of indebtedness. A party who, at the request of a railway company, takes up its certificates of indebtedness given to its laborers and others for the boarding of hands, is not entitled to any lien, under the statute, against the company or its property.</p> <p>4. Assignment of lien. Although a laborer upon a railroad has a lien by statute for the sum due him, it is not assignable at law, and, even if assignable, it would not entitle the holder of the same to assign the lien.</p> <p>5. Remedy for enforcement of liens. Liens are enforceable in equity unless the law has provided another mode. This is true of vendor’s liens, equitable and other mortgages, and all statutory liens, except when the lien is in the nature of a pledge, and possession accompanies the lien. A court of law does not possess the means of enforcing such liens.</p>

<p>1. Chancery practice—-filing further answer. After replication is filed, the defendants in a chancery suit can not put in any amended or new answer without leave of court, except when required to do so by the court; and if the same is so filed without leave or requirement of the court, it will be disregarded.</p> <p>3. Same—when sworn answer must he proved. If a sworn answer to a bill in chancery sets up new matter in defense, not responsive to the bill, as, a homestead exemption to a bill to foreclose a mortgage, the defendant must sustain the same by proof.</p> <p>3. Same—setting cause for hea/ring on hill and answer. When new answers are filed after replication without any leave or order of the court, and the cause is heard without any replication to the new answers, they will not be taken as true, but will be disregarded.</p> <p>4. Same—practice on death of one of several complainants. On bill to foreclose a mortgage by several partners, given to secure a partnership debt, a bill of revivor is not necessary on the death of one of the partners, but, the death being shown to the court, the suit may be prosecuted by the survivors.</p>

William H. Snyder, Judge, presiding. This was an action of forcible detainer, brought by Frankenthal & Bro., against John S. Wheeler, for the recovery of certain mill property. ^.; 5, The proof showed that the plaintiffs leased the property to the defendant for one year, commencing on the first day of August, 1873, and that on July 1,1874, the plaintiffs agreed, verbally, to lease the mill for another year, part payment to be made in repairs, and that, under this agreement,…

Amos Watts, Judge, presiding. This was a claim originally presented by William Goodwin against the estate of Isaac Young, deceased, for services. The claim was allowed by the county court, and the administrator of the estate appealed the cause to the circuit court. On a trial in the latter court, the jury found in favor of the plaintiff, in the sum of $247.

Writ of Error to the Circuit Court of Marion county j the Hon. Amos Watts, Judge, presiding. This was a bill in chancery, filed by John B. Craft, against Elijah S. Dickens, to reform an attachment bond by correcting certain mistakes made in drafting the same.

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

Amos Watts, Judge, presiding. These two cases were proceedings by mandamus, on the relation of the Cairo and St. Louis Railroad Company, against the trustees of schools of two different townships, to obtain from the townships the bonds voted by them to be issued to the relator upon a compliance with the conditions imposed in the vote and subscription.

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

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

<p>1. Administbation—whether money paid on life policy of inswrance is assets for the payment of debts. If a life policy of insurance is made payable to the party’s “ legal representatives,” the proceeds thereof will he assets in the hands of his executor or administrator, and subject to the payment of debts, the same as any other personal assets.</p> <p>2. Same—claims must be paid pro rata. An administrator must pay all claims presented and allowed, within the time limited by law, pro rata. If his account shows the payment of some creditors in full, to the prejudice of others", it should not be approved.</p> <p>3. Same—no objection to allowance of claim that it is secured on real estate. It is no objection to the allowance and payment of a claim against an estate that it is secured on real estate of the intestate. The personalty is the primary fund out of which all claims must be paid, and it must first be exhausted.</p> <p>4. Insurance—life policy may be made payable so as to exclude creditors. It is competent, under the laws of this State, to make a policy of insurance on a person’s life payable to his widow or heirs, to the exclusion of his creditors.</p>

Writ of Error to the Circuit Court of Bond county; the Hon. William H. Snyder, Judge, presiding. This was an action on the case, brought by Matthew Henry against the city of Greenville, to recover for personal and other injuries, occasioned by a defective culvert alleged to have been within the city limits.

Writ op Error to the Circuit Court of Randolph county; the Hon. Amos Watts, Judge, presiding. This was a bill in chancery, filed by Henry Hopkie against Mary Clingman, Frederick Runge, Dorothea Rabe, and Bathine Runge, and Charles Schwear, her next friend, to enjoin the prosecution of an action of ejectment, instituted by Frederick Runge and Bathine Runge, by Charles Schwear, her next friend, against the complainant, for an 80 acre tract of land, and to correct the title.

William H. Snyder, Judge, presiding. On the 30th of August, 1870, David D. Berry, John Berry, Amos Berry, John 8.

Tazewell B. Tanner, Judge, presiding. This was an action of assumpsit, by Jonah Morlan, against William A. Howell, James W. Millspaugh and Charles Carroll, partners, to recover for the loss of a lot of oats. The opinion of the court gives the material facts of the case.

<p>Insurance—breach of condition to keep house insured occupied. A condition, in a policy of insurance of a dwelling house, that, if the house should become vacant and unoccupied, the policy should become void, is broken when the tenant occupying the same leaves the house two months before a loss by fire, and gives the assured notice of the fact, and no recovery can be had on the policy for the loss. The fact that the tenant has left a few articles in the building, and has not delivered the key to the owner, but with no intention of thereby holding possession, will not change the rule.</p>

<p>1. Ohanceey—contested elections. The proceeding to contest an election, under the act of 1872, is, to all intents and purposes, a chancery proceeding, and subject to all the rules governing the same.</p> <p>2. Amendment—of petition or bill to contest an election. It is proper to permit amendments to the petition filed by a contestant of an election, under the act of 1872.</p> <p>8. Elections—of numbered and unnumbered ballots. A numbered ballot should not be rejected in counting the votes at an election, merely because an unnumbered ballot is found folded within the same.</p> <p>4. Same—of the place of holding an election. The place of holding an election was fixed, by the proper authority, at a certain store. When the judges of election and the voters appeared at the store on the day of election, the proprietor forbid them the use of it. They then repaired to a building on the same side of the street, and not more than 50 or 100 feet from the store, and there the poll was opened, and the election proceeded without hindrance, all the voters knowing where the poll was opened, as it was readily seen from the store, and made manifest by the crowd going and returning therefrom. Ho fraud or improper motive was shown to produce this change, nor did any voter complain that he was deprived thereby of an opportunity to vote: it was held, in a proceeding to contest the election, there was no wrong done in holding the election at a place other than that originally appointed.</p> <p>5. Same—who are voters—college students—what is a “permanent abode." The “permanent abode” prescribed by the Revised Statutes of 1874 as the criterion of the residence required to constitute a legal voter, does not mean an abode which the party does not intend to abandon at any future time. In the sense of the statute, a “permanent abode” means nothing more than a domicil, a home, which the party is at liberty to leave as interest or whim may dictate, but without any present intention to change it.</p> <p>6. The undergraduates of a college, who are free from parental control, and regard the place where the college is situated as their home, having no other to which to return in case of sickness or domestic affliction, are as much entitled to vote as any other resident of the town pursuing his usual avocation. It is, pro haa vice, the home of such students—their permanent abode, in the sense of the statute.</p> <p>7. As a general fact, however, undergraduates of colleges are no more identified with residents of the town in which they are pursuing their studies than the merest stranger. Hor would the simple fact that such students paid a road tax in labor while in attendance at’the college, have any weight in determining the question of residence, the law under which such road labor was bestowed not requiring residence to render the party liable, but simply inhabitancy.</p> <p>8. Same—as to residence of paupers. A party does not forfeit his residence in a precinct in which he was a voter, merely by becoming a county charge and an inmate of the poor house.</p> <p>9. Naturalization or aliens—jurisdiction of county courts. The county courts of this State have jurisdiction to grant certificates of naturalization to aliens.</p> <p>10. Former decision. The doctrine on this subject, as announced in The Board of Supervisors of Knox County v. Davis, 63 Ill. 405, is overruled.</p> <p>11. Naturalization or adult—effect upon, illegitimate children. A foreign born person, who was alleged to be illegitimate, came to this country as a member of the family of his reputed father, whose wife was the mother of the boy. The reputed father was naturalized while the alleged illegitimate child was an infant: Held, as the child was a member of his reputed father’s family when his father was naturalized, and he an infant, that by virtue of the act of Congress he became naturalized, and that the question of his legitimacy would not be inquired into in a proceeding to contest an election.</p> <p>13. Registration or voters—of voting without registration or proof of right. Where a person votes at an election without having been registered, and without any proof of right, if it does not appear he was challenged, or any objection made to his voting, the presumption must be that he was a legal voter, and so known to the judges of the election.</p>

<p>1. Parol partition—whether binding on the pa/rties. A parol partition of land between tenants in common, carried into effect by possession taken by each party of his respective share according to the partition, will be valid and binding on the parties.</p> <p>3. Same—what constitutes such a pa/rtition. One of two tenants in common of land sold and conveyed by warranty deed one-half the premises, as an entirety, to a stranger. Subsequently, the same party, as the attorney in fact of his co-tenant, contracted to sell the remaining half, and that sale was consummated by the principal executing a deed to the purchaser for such remaining half, the party making the sale being present at the execution of the deed and signing his name as a witness thereto. This disposition of the land seems to have been acquiesced in by the respective co-tenants for nearly thirty-eight years, when he who first conveyed brought ejectment against a remote grantee of his co-tenant to recover an undivided half óf the half of the land which the latter had so conveyed: Held, that, upon the facts, there was at least a parol partition of the land between the tenants in common, each taking the portion so disposed of by him, so that the defendant in ejectment was not guilty of unlawfully withholding the possession from the plaintiff.</p>

William H. Snyder, Judge, presiding. This was an action of debt, brought in the name of the People of the State of Illinois, for the use of Christina Wolf, Edward Wolf and Susan Wolf, against John H. Weir, surety, upon the bond of Frederick T. Krafft, deceased, as administrator of the estate of Jacob Bitzer, Jr., deceased. The material facts of the case will appear in the opinion of the court.

<p>1. Negligence in railroad—omission to give signal, and running at too TtzyA a rate of speed in a city. A person was crossing a street in a city, after night-fall, in which there were four railroad tracks, upon which trains were passing at short intervals at all hours of the day, and just as he was stepping upon the farthest track in the direction he was going, he was struck by an approaching train, and injured to such an extent that he soon afterward died. The company employed a watchman, whose duty it was to warn persons crossing the tracks of danger from approaching trains, and, in view of the character of the thoroughfare, such a precaution was proper and necessary. But, at the time of the accident, the watchman was not present attending to his duty, and the train was running at a much higher rate of speed than was allowed by an ordinance of the city, and it was a question whether a bell was rung or a whistle sounded upon the engine: Held, under the circumstances, an omission of any one of the duties mentioned would constitute gross negligence on the part of the company.</p> <p>2. Contributory negligence. Upon a review of the facts in this case, it is held, there was no such contributory negligence on the part of the person injured as would relieve the company of liability. If he saw the head-light upon the locomotive, in the darkness, and in the absence of any signal or warning, either from the watchman or from the bell or whistle, he would probably be unable to discover that it was in motion, or if he saw the engine approaching, he had the right to suppose it was not moving at a rate of speed greater than was proper at that time and place, and to regulate his own conduct accordingly. The omission of proper precautions by the company would, under the circumstances, tend to relieve the party from the charge of negligence on his part.</p>

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

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

<p>Writ of Error to the Superior Court of Cook county.</p>

<p>CournfUAKCB—wTiat is sufficient cause for. A defendant was indicted for a crime, and employed and paid an attorney, and was tried, and the jury failed to agree, and he was remanded to jail, and there remained for several weeks, when he was again brought into court, and then, for the first time, notified that his attorney had abandoned his case, and it was set for trial on the next day, and he then had subpoenas issued for witnesses, and on the next day, when the case was called for trial, he made a motion for a continuance, supported by an affidavit showing these facts, and showing, also, that he had relied upon his attorney to prepare his case for a second trial, and that he did not know that the attorney had abandoned the case until notified of it, in open court, the day before; that, as soon as notified of it, he had subpoenas issued for witnesses, giving their names and residences, and stating what facts he expected to prove by them, which facts were material and necessary to a proper defense, and that, owing to the shortness of the time intervening between his ascertaining that his attorney had abandoned the case and the time of its being called for trial, the witnesses had not been found: Held, that sufficient diligence was shown, and the continuance should have been granted.</p>

<p>1. Consideration—sale of land. Where the owner of land gave a written memorandum to a party, stating that he would sell him a lot of land for a certain price, to be paid within a time named, but there was no agreement expressed in the writing, by the purchaser, to pay the price, and the purchaser afterwards built a corn crib and barn, and sunk a well, on the premises, and kept up the fences and paid the taxes, this constituted a sufficient consideration to make the agreement binding on the vendor.</p> <p>2. Specific performance—not enforced when purchaser makes default as to time of payment. Where the purchaser of land delays offering payment of the purchase money for five months after the stipulated time for payment, without any excuse therefor, his right to call for a specific performance will be thereby precluded, unless the stipulated time for payment has been waived.</p> <p>3. Time of payment — waiver. Where the vendor of land, after the expiration of the stipulated time for payment of the purchase money, distinctly recognizes the right of the vendee to the property, and asks to have refunded to him the taxes on the same for one year that he had paid on it subsequent to the expiration of the stipulated time for payment, the vendee having paid all the other taxes, a waiver of the time stipulated for the payment of the purchase money may be inferred.</p>

This was an application in this court by C. D. F. Smith, the relator, for a mandamus to compel the common council of the city of Aurora and the city council of the city of Elgin to order an election, to be held for the election of a judge of the Court of Commoh Pleas of the cities of Aurora and Elgin, or of the city court of Aurora and the city court of Elgin.

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

<p>1. Liability of husband for goods sold to the wife. Where goods necessary and suitable to the position in life of a wife are sold to her, on the credit of her husband, and charged to him, a jury will be justified in finding that the wife was the agent of the husband to make the purchase.</p> <p>2. Minors—father of, not liable for goods sold. An express promise, or circumstances from which a promise may be inferred, must be proven before the father can be made liable for goods sold and delivered to his minor child.</p> <p>3. Goods which were necessary to the comfort of a minor daughter of the defendant, were sold to her whilst she was living away from home, and receiving her own wages, and charged to the father: Held, that the father was not liable.</p>

<p>1. Sale of personal property—delivery of goods sold is not necessary to pass title, as between the parties to the sale.</p> <p>2. Sale of goods by sample—delivery ticket. Where goods in the hands of a carrier are sold by sample, and a delivery ticket, in.the form of an order, by the proper railroad or station agent, to deliver the goods therein described to the person therein named or bearer, is delivered to the purchaser, with a sample, the title to the goods is thereby completely vested in the purchaser, and if they are afterwards destroyed it is his loss, and he is liable for the price agreed on.</p> <p>3. There can be no custom giving a purchaser, by sample, 24 hours, or any other time, to examine the goods. He purchases by sample, and if the goods do not prove equal to the sample, he may return them, or sue for and recover the difference.</p>

<p>Appeal from the Circuit Court of Grundy county; the Hon. Josiah McRoberts, Judge, presiding.</p>

W. W. Farwell, Judge, presiding. April 23, 1875, an election was held in the city of Chicago, under the provisions of the general act to provide for the incorporation of cities and villages, approved April 10, 1872, with a view to incorporation under that act.

<p>Writ op Error to the Circuit Court of Henry county; the Hon. George W. Pleasants, Judge, presiding.</p>

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

<p>1. Composition agreement—construction of. A composition agreement should not receive a construction more comprehensive than the reasonable import of its language would signify, and should be limited in its effect to such matters as were within the contemplation and intention of the parties at the time of its execution.</p> <p>2. An agreement by which a creditor agrees to take 25 per cent on each and every dollar that his debtor owes and is indebted to him, in full discharge and satisfaction of the several debts and sums of money that the debtor owes and stands indebted to him, does not affect any debts which may afterwards accrue to the creditor.</p> <p>3. Where a creditor held several notes of his debtor, and indorsed one of them to a third party, and afterwards, and whilst said indorsed note belonged to the indorsee, made a composition agreement with his debtor, whereby he released and discharged him from all debts and sums of money, then due and owing from such debtor to him, stating the aggregate amount of such indebtedness: Held, that this agreement would not affect the right of the creditor to collect from the debtor whatever sum he might afterwards have to pay, as indorser of the note so indorsed before the execution of the composition agreement.</p> <p>4. Payment—as to the mode. And in such case it would not affect the right of recovery of such indorser as against the maker, that the former paid the note to the indorsee by giving his own note therefor instead of paying the money.</p>

<p>1. Sureties—release by extension of time to principal, without their assent. Where an extension of time is given a principal debtor for the payment of money, by a valid and binding agreement, without the assent of the sureties, they are thereby released.</p> <p>2. Consideration for agreement to extend time—payment of usurious interest. An agreement by the holder of a promissory note, made with the principal in said note, without the knowledge or consent of the sureties, to extend the time for the payment thereof, in consideration of usurious interest paid by the principal, and accepted by the holder of such note, is a valid and binding contract for an extension of time, and releases the sureties.</p>

<p>1. Remedy—-for wrongfully suing out attachment. A defendant in attachment who has been wrongfully complained against, may defend the attachment, may sue on the attachment bond, or bring trespass.</p> <p>2. Waiveb ob trespass—iy appearance. Where a writ of attachment is wrongfully issued and served, the defendant does not, by appearing before the justice who issued it, and applying for and obtaining a change of venue, waive the trespass.</p> <p>8. Trespass against an officer for wrongfully issuing attachment. If a justice of the peace issues an attachment when not authorized to do so, his ignorance as to the extent of his authority is no excuse.</p> <p>4. A party went before a justice of the peace, on Sunday, and made an affidavit, upon which the justice issued an attachment, and appointed another party to execute it, who took the writ, and, under it, seized and carried away the goods of the defendant in the attachment. The defendant appeared before the justice, and procured a change of venue to another justice, but did not defend the attachment suit any further, but brought an action of trespass against the plaintiff in the attachment suit, the justice who issued it, and the appointed constable who served it: Held, that they were all liable, and that the right to bring the action of trespass was not waived by appearing and taking the change of venue in the attachment suit.</p>

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

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

. Arthur A. Smith, Judge, presiding. This was a suit brought by Frederick Bulson against James Thompson, to recover for the expenses paid by the plaintiff to fence viewers.

<p>1. Homestead—turn set off on decree of foreclosure of mortgage. The statute not having, in terms, pointed out the particular manner in which a court of chancery shall proceed to set off a homestead, where it becomes necessary to enforce a lien in equity on the premises, it is proper to adopt the mode provided by the statute when an officer holds an execution.</p> <p>2. It is proper in a decree of sale upon foreclosure of a mortgage, to direct the master in chancery “to proceed, according to law, to summon three householders, as commissioners, who shall, upon oath, administered to them by such master, appraise the value of the premises in which homestead is claimed, and if the premises can, in their opinion, be divided without injury to the interests of the parties, to set off so much thereof, including the dwelling house, as shall be worth $1000, and that the master sell the residue of said premises.”</p> <p>3. In summoning such commissioners, the master acts as an officer of the court, for and on behalf of all the parties to the proceeding, and need not consult the owner of the premises in selecting such commissioners.</p> <p>4. Injunction — assessment of damages on dissolution. Where the sale of premises by a master in chancery was enjoined, it was proper, in assessing damages on the dissolution of the injunction, to include the costs of advertising the sale, and a reasonable solicitor’s fee for defending the injunction suit.</p>

<p>1. Abbitbation. The finding of arbitrators, like that of a court, must be regarded as embracing all matters submitted to them, and, unless impeached in some manner known to the law, is conclusive of the rights of the parties.</p> <p>2. The law, in the absence of proof of fraud, will presume the arbitrators considered all the evidence, and allowed such items to the respective parties as they considered proved.</p>

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

<p>1. Pleading. If a replication is to a plea not in the record, it might properly be stricken from the files, bnt it would be no ground of demurrer.</p> <p>2. Bill on exceptions—when necessary. If a trial is had in the court below, of a cause, out of its order, and before its time on the docket, all that was done should be embodied in a bill of exceptions and made a part of the record, in order to have the proceeding reviewed in the Supreme ‘Court.</p> <p>3. This court can not presume that the court below committed an error. Until overcome by the record all the proceedings in the court below will be presumed to conform to the law, and it is for the party alleging error to show it.</p>

<p>1. Criminal law—indictment for keeping tippling house open on Sabbath. An indictment under section 127 of the Criminal Code of 1845, which charges that the defendant, on the 10th day of March, 1874, the same being the Sabbath day, in the night-time of said day so being the Sabbath day, did unlawfully keep open a tippling house, etc., is sufficient, and a motion to quash should be overruled.</p> <p>2. This statutory offense might be committed during the time embraced between the preceding midnight and the dawn of Sabbath morning.</p> <p>3. Keeping open tippling house on the Sabbath — what constitutes. On the trial of a party indicted for keeping open a tippling house on the Sabbath day, the court was asked to instruct the jury that it must be shown by the evidence that the house was kept open for tippling purposes, as on week days, before the defendant could be convicted; but the court modified the instruction by omitting the words “as on week days Held, there was no error.</p> <p>4. It is not necessary, to constitute the offense under the statute, that the house be kept open as on week days. It will be within the offense named if it is so kept that access may be had thereto on the Sabbath, and facilities afforded for the obtaining of intoxicating drinks, and it is not material whether the access is by the front door or back door, or whether the door is kept open or is only opened on application for admittance.</p> <p>5. Juror—competency. It is not ground of challenge, on the trial of one indicted for keeping open a tippling house on the Sabbath day, that a juror has a bias or feeling against persons engaged in the business of saloon keeping, and a prejudice against the selling of liquors, when he states that such feeling and prejudice would not influence his judgment, and that his feeling and prejudice was against the business, and not against the persons engaged in it, and that he would do the defendant justice.</p> <p>6. Several judgments on different counts. Where a defendant was found guilty upon two counts in an indictment, one for keeping open a tippling house on the Sabbath day, and one for keeping open a tippling house on Sabbath night, it was proper to render a several judgment on each count.</p>

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

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. Henry Booth, Judge, presiding.</p>

George W. Pleasants, Judge, presiding. This was a suit in replevin, brought by Peters, Fuhlhage & Co., to recover the possession of 200 barrels of flour. The flour had been levied upon and taken out of the hands of the Chicago, Burlington and Q.uincy Railroad Company by a constable, as the property of Cannon & Van Liew, under four several writs of attachment issued against them.

Hehry Booth, Judge, presiding. This was a proceeding against Frederick A. Bragg, for a contempt of court, for not serving as a juror. The defendant gave in evidence certain parts of the charter of the city of Chicago, exempting persons who should have served as firemen in the city seven years, from serving on all juries, The sections referred to are in Laws 1836-7, sec. 54, p. 72, Laws of 1854, p. 163, chap. 9, sec. 6, and Laws of 1854, p. 217, sec. 4.

<p>1. Replevin—when demand, necessary. Where property, in the possession of the agent of the owner, is levied on by an officer 'under an execution against a third party, and then turned over by the officer to such agent, to hold as his custodian, it is not necessary for the owner to make a demand before bringing replevin against such officer and custodian.</p> <p>3. Where an officer levies an execution on property in the possession of the defendant in the execution, as his property, he only discharges his duty, and his possession is lawful, and if another party claims the goods, he must make a demand before' he can maintain replevin for them; but if the goods are in the possession of the party so claiming them when levied on, then no demand is necessary.</p> <p>3. Personal property—transfer of valid, as between the parties, without change of possession. Where personal property is turned over by a debtor to his creditor, to secure his indebtedness, the arrangement is binding between the parties, although not followed by such a change of possession as would be binding upon other creditors of such debtor.</p> <p>4. Where the owner of personal property turned the same over to a creditor to secure an honest debt, and the possession was delivered to the creditor, and afterwards the attorney of such debtor, under a power.of attorney, which only authorized the sale of real estate, sold such property to the creditor in discharge of the debt, it was held, that, even if the power of attorney did not authorize such sale, yet, as the debt was not paid in any other-way than by such sale, the creditor would still have .the claim on the property under the original arrangement, and could hold the same against creditors or other persons.</p> <p>6. Error will not always reverse. Where an instruction is given upon" a point that does not properly arise in the case, and it is not calculated to mislead the jury, or to prejudice them against the opposite party, the j udgment will not he reversed, even though the instruction may have been improperly given.</p>

<p>Writ oF Error to the Superior Court of Cook county; the Hon. William A. Porter, Judge, presiding.</p>

<p>Writ of Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Will—when must he admitted to prohate. The statute has prescribed what is necessary to admit a will to probate, and courts have no power to superadd other conditions or dispense with any portion of those enumerated in the statute; nor has the court the slightest discretion. When a case is made, the court must admit the will to probate, and if the necessary proof is not produced, the court must reject the will.</p> <p>2. Same—what is sufficient proof to admit to prohate. Where one of the witnesses testified that he saw the testator sign the will, and that he signed it at the request of the testator; and the other, that the testator’s name was signed to it at the time he witnessed it, and both witnesses testified that they signed it and witnessed it in the presence of the testator and of each other, and that the testator was of sound mind and memory when they witnessed the instrument, and that he was at that time from forty-five to fifty years of age, the requirements of the statute were fully complied with, and the court had no power to reject the will.</p> <p>3. The fact that a will bears date on the 20th day of the month, and the petition of the proponent of the will for letters of administration states that the testator died on the 17th of the same month, does not tend to prove that the will is a forgery. The more reasonable supposition is, that the proponent was mistaken as to the date of the death, or that a mistake was made in the date of the will.</p> <p>4. Examination of witnesses—when leading questions may he ashed. It is discretionary with the court to permit leading questions to be asked, and when a witness is unwilling, or very ignorant, a fair administration of justice requires that such a course should be allowed.</p> <p>5. Signature—;presumed to he affiwced under standingly. Where an instrument is found with a signature affixed to it, the presumption is, that the party signing it knew its contents, and there is no distinction in this respect between those who can and those who can not write.</p> <p>6. Mode of tbial—can not he objected to hy pa/rty consenting to it. When the question of the probate of a will was, by consent of the contestant, submitted to the circuit court upon the evidence produced in the county court, instead of a trial de novo, he is bound by his consent, and can not assign the mode of trial as error on appeal to the Supreme Court.</p> <p>7. Evidence—when not pertinent, may he rqeeted. It is not error for the court to reject evidence which is not pertinent to the issue, considered by itself, and which is not followed up by any evidence which would make it pertinent.</p>

<p>1. Cities—duty of, in constructing sidewalks. A city is not required to have its sidewalks so constructed as to secure immunity from danger in using them; nor is it bound to employ the utmost care and exertion to that end. Its duty, under the law, is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution.</p> <p>2. Same—liability of, for defects in sidewalks. The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby.</p> <p>3. Evidence—opinions of witnesses—experts. The opinions of witnesses should not be received as evidence, where all the facts upon which such opinions are founded can be ascertained and made intelligible to the court or jury.</p> <p>4. On questions of science, skill or trade, where the facts in issue are not themselves accessible by evidence, persons of skill, called experts, are, from the necessity of the case, permitted to give their opinions in evidence.</p> <p>5. Whether glass placed in a sidewalk to afford light to the area below, is unsafe, by reason of the too great smoothness or slipperiness of its surface, is not a question of science or skill such as to render the opinions of witnesses admissible.</p> <p>6. Peactice—reading law to the jury, improper. Counsel should not be permitted, in civil cases, to read law to the jury. It is for the court to instruct the jury as to the law governing the case, and not for them to determine it for themselves by having law books read to them.</p> <p>7. And it does not obviate the objection, that the reading is for the purpose of illustration only.</p>

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

<p>Bill ot exceptions — should show that it contains all the evidence. Where the bill of exceptions fails to show that it contains all the evidence introduced upon the trial in the court below, it will be presumed, on appeal to the Supreme Court, that other testimony was heard, and that the evidence before the court was sufficient to authorize the judgment rendered.</p>

<p>Appeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.</p>

Charles H. Gilman, Judge, presiding. This was an action of ejectment, brought by John L. McCormick against William L. Huse. The opinion of the court states the facts of the ease.

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

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

<p>1- Service—return by deputy must be in principal’s name. If summons is served by a regular deputy of a sheriff, the return must be in the name of the latter. The act of the deputy in such case is, in law, the act of the principal. * *</p> <p>2. Same—rule different when made by a special deputy. But where summons is served by a special deputy by appointment indorsed thereon, the statute does not require the return, which is to be made under oath, to be in the name of the sheriff.</p> <p>3. Summons—description of municipal corporation sued. Where the municipal government of a village is vested in a council consisting of a president and five councilmen, a summons in a proceeding for a mandamus to enforce a public duty against ‘‘the council” of the village, will be good, and it need not be directed to “the president and councilmen” of the village.</p> <p>4. Service—upon village corporation. A summons in a suit against the council of a village, in a proceeding to obtain a mandamus to compel the performance of a public duty, is properly served upon the president alone.</p> <p>5. Same—of mandamus. But a peremptory writ of mandamus against a municipal corporation is governed by different principles, and must be served upon those persons composing the council at the time of service.</p> <p>6. Villages—right to become incorporated under general law of the State. Where a proper petition is presented to the council of a village incorporated under a special act or charter, praying for an election to vote upon the question of organizing under the general incorporation law, the council have no discretion to refuse to call the election, but should act upon the same at the earliest convenient moment, and appoint judges to hold the election and give notice of the time and place of holding the same.</p> <p>7. If the council should unreasonably postpone the time for holding the election, and fail to appoint judges to hold it, or neglect to give the proper notice, the courts will compel them to do their duty in this respect by mandamus.</p> <p>8. Mandamus—as to matters of discretion. Where a discretion is abused, and made to work injustice, it may be controlled by mandamus.</p> <p>9. Same—who may prosecute. Where the object of a proceeding by mandamus is the enforcement of a duty in which the public is interested, the people are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested as a citizen in having the laws executed, and the right in question enforced.</p>

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

<p>1. Official bond—liability of sureties. Where a supervisor is elected Ms own successor, and gives a new bond, the sureties are liable on such bond for any amount which appears to have been in the hands of such supervisor belonging to the town, at the end of the preceding official term.</p> <p>3. A supervisor was elected for a second term, and at the end of the first term made a report, showing a certain amount in his hands belong. ing to the town, which report was approved: Held, that such report must be considered as true, and that such amount was in his hands as his own successor, and that the sureties on his bond for the second term are liable for a failure on his part to account for it.</p>

<p>1. Homestead—only exempt to the extent of §1000. Where the land occupied by a defendant in execution is worth more than §1000, he is not entitled to have the whole of it set off to him.</p> <p>3. Where 40 acres of land were levied on under execution, and claimed by the defendant as exempt, and the sheriff summoned six householders, who set off a portion of the same, including the dwelling house, out houses, barn, spring and garden, worth fully §1000, in conformity to the provisions of the statute, this was all the defendant was entitled to, and the sheriff was authorized to sell the residue of the land under the execution.</p> <p>3. Same—how setoff to dfendant in execution. An execution was levied on land occupied by defendant as a homestead, and the officer made return to that effect, and also returned the affidavit of six persons, naming them, "in which they described themselves as householders and residents of the county where the land was situated, and stated that they had been summoned by the sheriff to appraise and set off the homestead of the defendant in the execution in and upon the land, and taken the oath required in such cases. These persons set off to defendant in execution a portion of the land, embracing the dwelling house, barn, orchard, garden, etc., worth fully §1000: Held, that the homestead was set off in conformity with the statute.</p>

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

<p>Writ op Error to the Circuit Court of Peoria county; the Hon. Sabin D. Puterbaugh, Judge, presiding.</p>

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

<p>1. Slander—plea of justification, not conclusive evidence of malice. The fact that a party, in an action for slander, fails to establish the truth of his plea of justification, by a preponderance of proof, is not of itself conclusive evidence of malice. It is sufficient if he believed it was true.</p> <p>2. Such a defense can only be deemed proof of malice where it appears, from the whole case, that it was made with a malicious intent, and even then it is simply proof, but not conclusive proof.</p> <p>3. Witnesses—husband <md wife, when competent for and against each other. The wife of a defendant is not a competent witness for him, in an action for slanderous words spoken by him of the plaintiff.</p> <p>4. The husband of a plaintiff, in an action for slanderous words spoken of her, is a cómpetent witness on her behalf.</p>

<p>1. Proof of heirship—hearsay evidence admissible. Hearsay testimony is admissible in questions of pedigree.</p> <p>3. Where a party, owning real estate, died without issue, and it appeared that he originally came from a certain locality in Ireland, and. that he had frequently spoken, amongst his friends, of his father and brothers, half brothers and a sister, naming some of them, still residing where he came from, and parties claiming to be heirs of the deceased proved that their father lived in the same locality; that it was common report in their family that they had an uncle in America of the same name of deceased; that their father had brothers and half brothers and a sister, and that the names of their father and his brothers, half brothers and sister corresponded with the names of those of deceased, so far as he had given their names, and that the name of their paternal grandfather corresponded with the name of the father of deceased, as given by himself ; and it further appearing that the claimants were the sole surviving descendants of their father, and that all of his brothers, sisters and half brothers were dead, and had no descendants surviving: Held, this was sufficiently satisfactory evidence of the heirship of the claimants.</p> <p>3. Baboain ard sale of lard. A verbal contract made by the owner of land with the father of an infant eighteen months old, that he will give all his land to such infant in consideration of the surrender of such infant by the father to him, to be raised by him as his own child, does not constitute a bargain and sale of the land.</p> <p>■ 4. Such a state of facts might, under some circumstances, raise an equity which a court of equity, upon proper proofs, would carry out and enforce.</p> <p>5. Same—possession. If an infant, eighteen months of age, is taken into the family of the owner of land, under a verbal agreement between the father of the infant and the owner of the land, that the infant was to live with and he raised by such owner as his child, and that the owner was to give all his land to such child in consideration thereof, and such infant continued so to live with the owner until his death, this would not constitute possession of the land by such infant.</p>

<p>1. Master and servant—the latter should he respectful and obedient. Where a party is employed by another, he must, in his intercourse with his employer, and those having control of his business, and with those doing business with such employer, abstain from all vulgarity and obscenity of language and conduct, and must be respectful and obedient to all reasonable commands of his employer, and those having control of his business.</p> <p>2. A failure in any of these requirements by a salesman in a store, would be ground for discharging him before his term of employment expires.</p> <p>3. Action to recover installments—measure of damages. On a contract for the payment of money in installments, assumpsit will usually lie to recover each installment as it falls due, without waiting for the last to mature.</p> <p>4. But where a suit is brought on such a contract, the plaintiff can only recover the amount that was due at the time the suit was brought, although at the time of the trial all the installments may have matured.</p> <p>5. Where a plaintiff has been employed by the defendant for one year, at a specified salary, payable in monthly installments, and before the year expired he was discharged, and afterwards, and before the end of his term, he brought suit, claiming that the contract was still in force, and that he was and had been ready and willing to perform, it was held, that he could only recover for the installments that had matured at the time the suit was brought, notwithstanding the term had expired before the cause was tried.</p> <p>6. If, when he was discharged, he had terminated the agreement, and sued on the breach of the contract, and the cause was not tried until the term had expired, and it had then appeared that he had been unable to procure employment during the time, it may be that he could have recovered for all the damage he had sustained during the term by the breach of the contract.</p>

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

<p>1. Tender—flea of, admits the amount named therein to he due. Where a defendant pleads a tender of a certain amount to the plaintiff, he thereby admits that that amount is due, and he is estopped from denying it.</p> <p>2. And the plaintiff has the right to sign judgment on a plea of tender, to the amount alleged to have been tendered, if it has not been paid into court.</p> <p>3. Same—practice in ease of signing judgment. The correct practice, where a plaintiff elects to take the amount alleged to have been tendered, is, if the money is brought into court, to order it to be paid over to the plaintiff, and render judgment against him for costs; but if the money is not brought into court, the judgment should be against the defendant for the amount of the tender, and costs.</p>

<p>Writ op Error to the Circuit Court of Iroquois county; the Hon. H. J. Pillsbury, Judge, presiding.</p>

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

<p>1. Continuance. . Where the declaration contained only the common counts, and there was a stipulation between the parties that the plaintiff" might introduce any evidence that would be admissible under any special count that could be drawn on the contract, and the plaintiff amended his account by adding an item thereto, for which a special count had been drawn: Held, that, under the stipulation, evidence as to such item could have been introduced without amending the account, and it was not error to refuse a continuance on account of such amendment.</p> <p>3. Contract—when may be abandoned—measure of damages. Where, by the terms of a contract, parties performing labor under it are to be paid at the end of each month, for the labor performed to that time, and they .are not paid at the stipulated time, and are, by reason thereof, compelled to abandon the work, they have the right to do so, and are entitled to recover for the work done and not paid for, pro tanto, at the contract price.</p> <p>3. Where a contract is made, by which a party undertakes to do the grading on a railroad, and gives a bond for the faithful performance of his part of the contract, he is entitled to receive the compensation provided for in the contract at the times and in the manner therein provided for, and those with whom the contract was entered into have no right to withhold any part thereof for the purpose of paying the hands or subcontractors on such work, and if they do so, the contractor has the right to abandon the contract and sue for and recover compensation for damages.</p> <p>4. In such case, it seems that the bond given by the contractor for the performance of his contract is relied on, instead of inserting a clause in the contract authorizing the payment of the hands and sub-contractors, and the deduction of such payments from the sum to be paid the contractor.</p> <p>.5. Interest on money payable in installments. Where, by the terms of a written contract, payments become due on a certain day in each month, it is proper to allow interest on such sum as may be due on the specified day, from that time until paid.</p>

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

Josiah McRoberts, Judge, presiding. This was an action of assumpsit, by Samuel H. Sweet, Wesley Dempster and Charles Hutchinson, partners, against Samuel C. Stearns, Herman D. Stearns, Frank Bush and Edward Aiken, upon five promissory notes. Samuel C. Stearns, the principal, not being found, a trial was had as against the sureties, before the court, without a jury, resulting in a judgment in favor of the plaintiffs for $1000. The securities appealed.

Arthur A. Smith, Judge, presiding. This was an action of assumpsit, for money had' and received, brought by Samuel D. Perkins, against Marcus Belden, in the circuit court of Warren county.

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

<p>1. Statute of Frauds—undertaking collateral to the promise of another, not in writing, void. Where the owner of a building being erected said to a material-man, who had already furnished materials to the contractor who was building the house, that he would payforall the materials that the contractor might get for the building, it was held, that the owner was liable, on his promise, for all materials furnished thereafter for such building and charged to him, but that he was not liable for such as had, before the promise, been furnished to the contractor.</p> <p>3. Practice in Supreme Court. This court can not act upon and give effect to an affidavit impeaching the correctness of a transcript filed herein, as against the certificate of the clerk.</p> <p>3. Superior Court of Cook county—what the record should show when a circuit judge presides. Where a circuit judge holds the Superior Court, the record should show what judge presided, and that he did so by-request of the judges of said court, as a branch court, in pursuance of the statute.</p> <p>4. Where the record shows that there were three judges of the Superior Court present at the trial, and further shows that a circuit judge actually presided on the trial, it is contradictory and informal, and shows not such an organization of the court as litigants are entitled to have when their cases are tried.</p>

<p>1. Wills—rales of construction. In the construction of wills or other instruments, in cases of doubt all the parts should be considered together, and, if possible, effect should be given to every clause and provision according to the intention of the maker.</p> <p>2. Technical rules are not so rigidly applied in the construction of wills, which are frequently written by persons unskilled and imperfectly acquainted with the accurate meaning of language, as in the con. struction of deeds; but the question, however, is, the entire instrument being considered, what did the testator intend by the will.</p> <p>3. A latter clause of a will is to be considered, when repugnant to a former provision, as intending to modify or abrogate the former.</p> <p>4. Whilst courts, in cases of doubt, may resort to surrounding circumstances to afford light in which to read the will and ascertain the intention of the testator, still they should never control—they are intended as mere aids.</p> <p>5. Same—declaration of testator. . In construing wills, courts can not resort to the declarations of the testator, either before or after the execution of the will, to control its provisions.</p> <p>6. Same—whether in fee, or only a life estate. By one clause of his will a testator, gave to his wife a certain tract of land, and by a subsequent clause he gave to his children, to share equally and alike in his real estate—the real estate to be sold after his wife’s death: Held, that the wife took a fee simple estate, and not merely an estate for life.</p>

<p>1. School directobs—powers of, to pur chase property and contract debts. The powers of school directors all exist under the statute, and are extremely limited. They may appropriate to the purchase of libraries and apparatus any surplus funds, after all necessary school expenses are paid, and the form of the orders to be drawn by them on the treasurer of the township is prescribed by statute, and must be followed; and such orders can not be made payable on time, or draw interest.</p> <p>2. Same—not liable on the quantum meruit for librao'ies or apparatus purchased for schools. The authority given to school directors by statute, to “appropriate to the purchase of libraries and apparatus any surplus funds, after all necessary school expenses are paid,” is a limitation of their power to make such purchases, to the circumstances named, and is an implied restriction of any power to purchase generally on credit.</p> <p>3'. A purchase of such articles by the school directors on a credit, where it does not appear that there were any surplus funds, after all necessary school expenses were paid, applicable to such purchase, is void, and there is no contract implied by law to pay for articles thus purchased, arising from their receipt and use.</p> <p>4 The only remedy of the seller, under such circumstances, is, to claim the property itself</p>

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

Writ of Error to' the Superior Court of Cook county; the Hon. John Burns, Judge, presiding. This was an action of assumpsit, brought by William Paton,. Thomas C. M. Paton,-Jonathan Longmire, Andrew G. Agnew and William L. Paton, partners, under the name and style of Paton & Co., against Hart L. Stewart, upon his guaranty of a promissory note given by Geo. E. Gardner & Co., to Paton & Co., dated January 17, 1874, for $300, payable five months after date.

<p>Negligence. In a suit against a city for damages occasioned by reason of a defect in the street, whereby plaintiff was thrown from a wagon and injured, it appeared that the driver of the wagon in which plaintiff was, was drunk, and drove so carelessly as to cause the accident, and that the defect in the street was not such as to be dangerous to a person exercising ordinary care, it was held, that a verdict for near §4000, against the city, should have been set aside.</p>

Henry Booth, Judge, presiding. This was an action of assumpsit, upon the common counts, for goods sold and delivered, brought by Thomas H. Brown and Aaron L. Brown, against Leopold Schoenfeld. The substance of the material tacts appears in the opinion of the court.

Lambert Tree, Judge, presiding. This was a suit in trespass, brought by appellee, Minzesheimer, against appellants, to recover damages for the taking of 10,700 cigars, to which Minzesheimer claimed title under a purchase from one Regina Blumenthal, the cigars having been levied upon and sold by appellant Avars, a deputy sheriff, under a writ of attachment in favor of appellants Strauss and Sawyer, against Regina Blumenthal and one Schloss, her partner.

<p>1. Recording laws—as notice of incumbrance. Although a party purchasing notes secured by deed of trust upon real estate has no actual notice of a prior incumbrance, yet if it is upon the record-at that time, and at the time the deed of trust was executed, he will be bound to take notice of such prior incumbrance, and its legal effect, and whatever rights he acquires by sale under his deed of trust, will be subject thereto.</p> <p>2. Deed oe trust—effect of a conveyance of the equity of redemption to party secured, after he parts with the notes. If a party, giving a deed of trust to secure the payment of notes to another, after the latter has parted with the notes for a valuable consideration, conveys the premises to the original holder of the notes, it will be subject to the trust deed, and all persons claiming under the latter will occupy no better position.</p> <p>3. Collateral security—when held for other indebtedness than that for which it is specially pledged. If a party executes an agreement to secure past and future loans, by which all collaterals given and thereafter to be given to secure the payment of specific notes for money loaned to him, are to apply generally to all notes held at any time by the party loaning, notes afterwards pledged for a special loan will not only be a security for the particular loan then made, but for the payment of all notes held by the lender, regardless of the manner in which they are secured, or their date.</p> <p>4. In such a case, so far as future advances are made, the contract is in the nature of a mortgage, and will be binding between the parties for any and all advances made prior to the time of third parties acquiring an interest in the collaterals pledged.</p> <p>5. Consideration—generally. Any act which is beneficial to one party, or a disadvantage to the other, is a sufficient consideration to support a contract.</p> <p>6. Security—pa/rty may rely upon several, and enforce either. A party loaning money under a general security, may also take special security, and rely upon either or both, and the right to determine which he will enforce, is with him, and not with the borrower, or those claiming under him.</p> <p>7. Accommodation paper—may be taken as a security. If a party, taking notes as collateral security for money loaned, and for past and future advances, has knowledge that they were accommodation notes, this will be no reason why he may not enforce their payment for future advances, as against one acquiring rights after such advances are made.</p>

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

<p>Writ of Error to the Circuit Court of Bureau county ; the Hon. Edwin S. Leland, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Will county; the Hon. Josiah McRoberts, Judge, presiding.</p>

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

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

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

<p>1. Right of way—compensation to the owner in case of condemnation— how far damages a/nd benefits to be considered. Under the Eminent Domain of 1853, the owner of land taken by a railroad is entitled to compensation, at all events, to the extent of the value of the land taken, without any deduction for benefits the land may receive from the location or construction of the road; but such benefits may be set off against any damage the land may sustain by the construction of the road.</p> <p>3. Same—benefits to one piece of land, can not be set off against damages to another. The damage done to one piece of land, through which a railroad is run, can not be compensated by benefits accruing to another and separate piece of land through which it does not run, although belonging to the same person.</p> <p>8. Where a town had been laid out into blocks and streets for many years, and the same had always been recognized, treated and dealt with by the owners and the people as blocks and streets so laid out, such blocks should be treated as distinct tracts of land for the purposes of assessing damages done by a railroad running through any of them, although the plat of the town may not have been made according to the statute.</p>

John G. Rogers, Judge, presiding. This was an action of ejectment, brought by Seth W. Hardin against James V. S. Crate, for the recovery of the west half of the north-east quarter of section 13, township 33 north, range 9 east, in Will county. The defendant recovered and the plaintiff appealed.

Samuel M. Moore, Judge, presiding. This was a petition in chancery, under the Burnt Record Act, Rev. Stat. 841, sec. 16, filed by Robert W. Robinson, against John Ferguson, on the 14th day of July, 1873, in the Superior Court of Cook county, setting out the destruction of the public records of Cook county by fire, in the fire of October 8 and 9, 1871; that the complainant was the owner in fee simple of the west half of the north-west quarter of section 30, in township 40…

<p>Appeal from the City Court of East St. Louis; the Hon. Daniel McGowan, Judge, presiding.</p>

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

Writ of Error to the Circuit Court of Iroquois county; the Hon. N. J. Pillsbury, Judge, presiding. This was an action of assumpsit, by Joseph Evans, against Milton Anderson, upon a promissory note given by the defendant to John W. Jones, and assigned to the plaintiff.

<p>Appeal from the County Court of Kankakee county; the Hon. C. B. Starr, Judge, presiding.</p>

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

Nathaniel J. Pillsbüry, Judge, presiding. This was an application, by Charles P. Swigert, county collector, to the county court, for judgment against delinquent lands and lots for the year 1873, and back taxes, special assessments, interest, etc. Objections to the rendition of judgment were filed by Charles Chiniquy and others, as to this real estate, most of which are noticed and answered in the opinion of the court.

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

Samuel M. Moore, Judge, presiding. This was a bill in chancery, filed by Daniel H. Carpenter and Amos F. Tompkins, against Junius Mulvey, to set aside a sale on execution of land, a redemption and re-sale on a second execution. The court below decreed the relief sought, but required of the complainants the amount paid by the defendant. The opinion of the court states the substance of the material facts.

<p>1. Contract—mutuality. Where the obligee in a bond grants the right to purchase certain machines of him, to be re-sold within certain territory, and agrees to furnish the same at a discount, on a credit of six months, and a bond is given to him to secure payments for machines sold, it will not be void for want of mutuality.</p> <p>2. Same—in restraint of trade. A contract to furnish a party with sewing machines at a discount, and upon a credit, which provides that such party shall deal exclusively in the machine sold by the party agreeing to furnish, and to purchase the same of him exclusively, contains no such restraint of trade as to render it void.</p> <p>3. Pleading—variance. In a suit upon a bond for a breach of its conditions, where there was also a contract between the principal in the bond and the obligee, respecting the sale of sewing machines, the declaration showed that, by the contract, the obligee in the bond reserved the right to make sales in the territory named, while the condition of the bond showed that the other party had the exclusive right of purchasing from him the machines: Held, that there was no fatal variance, as the suit was upon the bond only.</p> <p>4. Verdict—action of court as to form. Where the verdict of a jury is not in form, mere irregularity in the proceedings of the court in having the same put in form, as in oral remarks and instructions which could not have affected the finding of the jury, except as to the mere form of the verdict, will not be sufficient error to reverse.</p> <p>5. Courts oe Cook county—whether held by one or more judges, Although the placita, or convening order, sent up in a record from the circuit court of Cook county, may show that the five judges were present and sitting, together with another assistant judge, yet if the bill of exceptions shows that the cause was tried by the latter judge alone, the judgment will not be reversed for the defect in the placita.</p>

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

<p>1. Garnishment—issue should be made as between the defendant in attachment and, the garnishee. It is irregular to make up and try an issue between a garnishee and the attaching creditor. The issue should be between the defendant in attachment and the garnishee.</p> <p>3. Same—form of judgment. No judgment can be rendered against a garnishee in favor of the attaching creditor, but it must be in favor of the defendant in attachment, which will stand as a security or fund, in which other attaching creditors may participate.</p> <p>3. Same—indebtedness on negotiable note. Where a garnishee has given a negotiable promissory note to the defendant in attachment, which is assigned before its maturity, he will not be indebted to such defendant, but to the holder, and will not be liable to garnishee process in the attachment.</p>

<p>1. Evidence—hearsay. On petition for dower, where the record failed to show a legal title in the husband of the petitioner, she, for the purpose of showing an equitable title, testified that her husband purchased the land, and that both he and the vendor told her that the husband paid the entire purchase money, and that, on a sale by the latter, the vendor conveyed to the purchaser: Held, that what she was told by her husband and his vendor was hearsay evidence, and should have been excluded on objection.</p> <p>3. Doweb—in land held under contract to purchase, which is assigned before payment. If a vendee, before he makes full payment, and before he is able to enforce a conveyance of the land, assigns his contract, and the assignee completes the payment and obtains a deed, the widow of the first purchaser will acquire no right of dower in the premises.</p> <p>3. And if the first purchaser, after assignment of his contract, completes the payment with the money received for his assignment, the result will be the same as if the assignee had made the payment to the original vendor, and the widow of the original vendee will .have no right of dower.</p> <p>4. Same—allegation in petition respecting title, construed. An averment in a petition for dower, that petitioner’s husband was seized in fee simple of the land, will import that he held the legal title; but if this is followed by the words: and was the owner of the equitable title to the lot in controversy, they will limit the prior allegation, and, when taken together, import that he owned the lot by an equitable title in fee simple.</p> <p>5. Party—on petition for dower. On petition for dower, against a lot owned by a married woman, whose husband has an interest therein by the curtesy or otherwise, the husband is a necessary party defendant.</p> <p>6. Same —person made a party defendant will be presumed to have an interest. If, in a proceeding for dower in land of a married woman, her husband is made a defendant with her, it will be presumed he has an interest, and he will have the right, without disclosing his interest, to put the petitioner upon proof of the title alleged to be in her husband.</p>

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

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

<p>1. Practice nr Supreme Court—remittitur. If a party in this court remits the amount of a particular item of account included in his judgment, this will obviate any conceived error in refusing an instruction relating to such item.</p> <p>3. Costs—remittitwr in Supreme Oowrt. Where the defendant below brings the cause to this court, and the plaintiif remits here a portion of the judgment, which was one of the grounds of error assigned, the party • thus entering the remittitwr will be required to pay all the costs which had accrued in this court up to that time.</p> <p>3. Married women—liability on their contracts—estoppel. If a married woman is in the possession of property, claiming to own and controlling the same, and, on her declaration of ownership, employs a party to make improvements on the same, under the belief that it is her separate property, she will be estopped from denying that she owned the same, when sued for the value of the labor performed.</p> <p>4. It is sufficient, to make a married woman liable, that she is in possession of real property, claiming to own the same in her own right, and, as such, employs another to perform labor upon the same. In such a case, it is wholly immaterial whether she has any title to the same or not.</p> <p>5. Lex nocí. The validity of a contract of a married woman, in respect to her separate property, or property claimed by her, is determined by the laws of the State where the same is made.</p>

Edwin S. Leland, Judge, presiding. This was an action of assumpsit, by Sarah A. Clayton against the Chicago, Rock Island and Pacific Railroad Company, to recover the value of lost baggage. The opinion of the court states the substance of the material facts.

John G. Rogers, Judge, presiding. This was an action on the case, by Patrick McEZittrick, against the Lake Shore and Michigan Southern Railway Company, and the Chicago, Rock Island and Pacific Railroad Company, to recover damages for a personal injury, on the ground of negligence. The opinion of the court states the substance of the material facts, except as to the extent of the injury to the plaintiff. The plaintiff’s wages, at the time of the injury, was $54.50 per month.

<p>1. Lease—mere breach of contract of does not work such forfeiture as to render tenant liable to pay for use and occupation. Where land is leased to a tenant for a term of years, in consideration of specified improvements to be made by him, a failure on his part to make such improvements will not, of itself, work a forfeiture of the lease, and convert him into a tenant liable to pay for the use and occupation.</p> <p>2. Until steps are taken to terminate such a lease, the lessee will be held to occupy under the lease, and his liability measured thereby.</p> <p>3. Same—measure of damages. Where land is leased to a tenant for a definite term, in consideration of improvements to be made and completed during such term, and he fails to make and complete such improvements, the lessor can only recover what it would cost to make such improvements, and the difference of the rental value of the land until such improvements could be made, after the expiration of said term.</p> <p>4 In such case it is error to admit evidence to prove the difference in the rental value of the land as it was and as it would have been if the improvements had been made, for the purpose of charging the tenant with that difference, whilst he held under the lease.</p>

<p>1. Practice—giving time to plead. The giving of time to plead is a matter of discretion with the court, and a refusal to give such leave is not subject to review in this court, where no abuse of discretion appears.</p> <p>3. Assignee before matwrity—subject to what defenses. Pacts showing a failure of consideration or fraud in the consideration of a promissory note, but not showing fraud or circumvention in obtaining its execution, will be no defense against the note in the hands of an assignee taking the same before maturity without notice.</p> <p>3. Assessment of damages—presumption as to proofs. In the absence of a bill of exceptions showing the evidence heard upon the assessment of damages in case of a default, it will be presumed that it was competent and sufficient.</p>

<p>1. Confession of judgment under warrant of attorney. The authority to confess a judgment without process must be clear and explicit, and must be strictly pursued.</p> <p>2. A warrant of attorney, which authorizes the confession of judgment upon a note therein described, and also upon other indebtedness to be afterwards incurred by the maker of such note to the payee thereof, upon other notes made or to be made, will not authorize the confession of a judgment upon other notes payable to the same payee, and bearing the same date of the note particularly described in such warrant of attorney.</p> <p>3. In this case, there were thirteen notes, all of the same date, executed by the defendant and payable to the plaintiff, to six of which were annexed warrants of attorney, each authorizing a confession of judgment for the amount of the note to which it was annexed, and also for any further indebtedness of the defendant which might thereafter accrue to the defendant upon any note, bond, etc., made or to be made. The attorney named in the six warrants of attorney, confessed a judgment for the amount of all the thirteen notes: Held, that it was error to refuse to set aside so much of said judgment as included the amount due upon the notes to which no warrant of attorney was attached.</p>

<p>1. Evidence—in chancery, confined to case presented by the pleadings. On bill to foreclose a mortgage given to secure a written agreement to repay a certain sum of money in case the same is not realized by the sales of a patent, etc., it will not be proper to go back of the mortgage and agreement to establish a debt upon which to base a decree of foreclosure, in the absence of allegations in the bill justifying the same.</p> <p>2. Contract—construed. Where a written agreement recites a sale and conveyance of an interest in a patent right for §1000 paid at the time, and provides that, if the vendee shall fail to realize that sum, within three years, from sales, the vendor will pay him back the price upon a reconveyance, and is silent as to what efforts shall be made to effect sales, the law will require a reasonable effort on the part of the vendee to make sales, taking into consideration his ability and pecuniary means to engage in the enterprise.</p> <p>3. And where the sale was of a fourth interest in a patent relating to an invention in the making of organs, and the assignee was a foreigner, and unacquainted with our language, and nearly all his means were invested in the purchase: Held, that it could not have been the intention of the parties that the assignee should enter upon the manufacture of musical instruments under the patent.</p> <p>4. If an inventor conveys a fourth interest in his patent to another for §1000 cash, and agrees, in writing, to repay the same in three years if that sum can not be realized from sales, upon a reconveyance, and it is shown that he prevented sales from being made, and that the grantee used reasonable exertions to realize his money from sales, according to his ability and means, but without success, the grantor will be liable to repay the price paid, with six per cent interest after the end of the three years and the tender of a reconveyance to him, and the fact that the grantee had, prior to his tender, refused to reconvey, will not change the result.</p> <p>5. Offer to fat—when no defense. Where a contract does not provide for any forfeiture, a mere offer to pay an indebtedness created under it, and a refusal to accept, will not preclude the party from afterward enforcing payment.</p> <p>6. The proof of a mere offer to pay money under a contract, without showing an ability to make the payment, can not be regarded as of any force in a suit for the money due.</p>

Writ of Error to the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding. This was a bill in chancery, by Edward Roby against Franklin D. Cossitt and others, for the specific execution of a contract for the sale of lands made to one Elisha Nason, and by him assigned to the complainant. The opinion of the court contains a substantial statement of the material facts of the case. The court below sustained a demurrer to the bill and dismissed the same.

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