Volume 81 — Illinois Reports

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

Joseph E. Gary, Judge, presiding. On November 18, 1871, appellant was found to be indebted to appellees, on settlement, in the sum of $7,831.28, which was settled in full on December 11, 1871, by appellees accepting from Marcus Warren, appellant’s brother, certain lands in the State of Wisconsin. The lands were not worth much more than one-half of the debt.

<p>1. Negligence—contributory and comparative. It is a requisite to the liability of a railway company as a passenger carrier, that the passenger should not have been guilty of any want of ordinary care and prudence, which directly contributed to the injury.</p> <p>2. Where a passenger, while asleep, is carried beyond his station, and when the train arrives at a bridge where it stops to take water he gets up, and, without any encouragement from any one connected with the company, goes out of the car in a dark night, and, finding no brakeman, put out his foot to reach the platform, if he could, and there being no platform there, the train gave him a jerk and pulled both feet off the car, and left him hanging by one hand, and his weight pulled him loose, and he fell through the bridge, some thirty feet to the ground, and was injured, it was held, that he was guilty of such negligence as to preclude a recovery for the injury.</p> <p>3. Same—carrying passenger beyond station. In such a case, even if the company was guilty of negligence in carrying the passenger beyond his station, it would not justify him in needlessly exposing himself to danger, and the injury received had no proper connection with the act of the company, and the company can not be held responsible for any such remote and unnatural consequence thereof, as his attempting to get off at such a place.</p> <p>4. Same—in not notifying passenger not to get off on a bridge. Where a railway train stops, in the night, upon a bridge over a stream, to take water, it not being a stopping place for passengers to get on and off', the railway company is not required, by law, to notify passengers not to attempt to get off the cars at such place, and a failure to do so is not negligence.</p> <p>5. SAXB^-eompany not liable for acts of strangers. Any encouragement given to a passenger by other passengers to attempt to get off a train at a place of danger, and not a stopping place except for water, resulting in injury to him, can not be imputed to the railway company as in any way its act, and it is not responsible for the same.</p>

<p>1. Law and fact—construction of contract. What the terms of a contract are, is a question of fact for the jury, but its meaning and legal effect is a question of law for the court. Therefore it is not proper in an instruction to submit to the jury the question of a party’s rights under a contract.</p> <p>3. Contract—when party has right to complete after time fixed. If the plaintiff contracts with the defendant to shell for the latter 150,000 husliels of corn, and as much more as he can before the cold weather, and through the defendant’s fault, he shells only a little over one-lialf of the bushels named by cold weather, the plaintiff will have the right to complete the contract after the time fixed, if he desires, and the defendant will have no right to avail of the stipulation as to the time the work was to be done.</p> <p>3. Same—construction. Where a contract provides that one party shall shell 150,000 bushels of corn, and as much more as he can before cold weather, it will be held to mean that he may shell the number oí bushels named at any rate, and the words “ cold weather ” will be understood to imply an additional amount, and the occurrence of cold weather will not authorize the employer to terminate the contract as to the 150,000 bushels when that amount is not shelled by his own act in preventing the same.</p> <p>4. Instruction—as to belief from, the evidence. Where the first part of an instruction omits the words “ from the evidence,” as the basis of the jury’s belief, but at the conclusion of the clause it states, “ and if you further believe from the evidence,” it was held that the jury could not be misled by it and have felt authorized to act on a belief not arising from the evidence.</p>

<p>1. Partnership account—statement in decree as to payment of debts. On hill to settle a partnership in a land speculation, and state the account, where the parties have had a previous settlement, the court will adopt such settlement as the basis upon which to adjust the subsequent dealings; and where there is no dispute but that the parties are owing $16,000, $4000 of which all were to pay in equal proportions, and one to pay $5000 of the remaining $12,000, and the other two $7000, it will not be material that the decree finds the latter sum to be owing to a certain firm, the main thing being the proportion each is to pay.</p> <p>2. Same—division of notes. Where the court, in adjusting a partnership dealing in which there are outstanding debts binding upon all the parties, but of which one is required to pay $5000 and the other two $7000, and the remaining $4000 by all in equal portions, and the court requires security to be given, the first to the other two for the payment of his part, and the other two security to the first for the payment of their separate parts, it was held, there was no error in requiring the division and surrender of the notes held by one of the parties belonging to all, before payment of the debts.</p>

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. S. H. Hooee, Judge, presiding.</p>

<p>1. Assignee before maturity—how far protected. Where the maker of a negotiable instrument puts it in circulation, and it is negotiated before due, and passes into the hands of third parties for a valid consideration, the maker can not be permitted to defeat payment, unless he establishes the fact that the holder purchased with notice of his defense.</p> <p>2. Same—assignee not bound to call on maker and make inquiry before purchasing. A party about to take an assignment of a promissory note is under no obligation to call upon the maker and make inquiry before purchasing the same, even though he lives in the same place with the maker, and the note is nearly due and is offered to him at a discount, and he knows that the maker is solvent.</p> <p>3. The payee of a promissory note called on a person residing in the same place with the maker, three days before its maturity, and represented to him that he was going to Philadelphia to take up paper which he owed, and that he needed money or paper not due for that purpose; that the note he then held would become due before he reached Philadelphia, and he could not use overdue paper, and thereupon sold and assigned the note to such person at a discount of three per cent, taking his note for the amount, due in thirty days: Held, that these were not such circumstances as would charge the assignee with notice of any defense to the note.</p>

<p>1. Drainage—levee must be auxiliary to struction of a levee along a river, as an independent work, is not authorized either by the constitution or statute enacted thereunder. The object of the drainage law is, the drainage of land for agricultural or sanitary purposes, by means of drains and ditches. It is only in connection with a system of drainage that a levee or other work may be undertaken, as auxiliary to the drainage of lands. l-</p> <p>3. The construction of a levee several miles along a river, can not be said to be a drainage of lands by drains and ditches over the lands of others; nor is such a levee, in any just sense, necessary to the drainage of lands, and is not within the meaning of the statute.</p> <p>3. Special assessments—-for drainage, not constitutional. The General Assembly, under the constitution, possesses no power to invest commissioners or juries, selected by the county court, with authority to assess and collect taxes or special assessments for the construction of a levee to prevent the overflow of lands.</p> <p>4. Taxation—local,must not be against will of those affected. The power of the legislature in respect to local taxation is subject to the limitation, that the local burden of taxation, or special assessments, can not be imposed upon a locality without the consent of the tax-payers to be affected.</p> <p>o. Same—constitutional limitation as to local. Under the present constitution, the legislature may invest cities, towns and villages with power to make local improvements by special assessments or special taxation upon contiguous property to be benefited, but is prohibited from conferring this power upon any other municipal corporations, or upon private corporations.</p> <p>6. Same—limitation as to taxes by municipal corporations.' Municipal corporations, other than cities, towns and villages, may be vested with power to assess and collect taxes for corporate purposes, but such taxes, under the constitution, must be uniform in respect to persons and property within the jurisdiction imposing the same.</p> <p>7. Same—right of election as to taxes. The clause of the constitution authorizing the passing of “ laws permitting the owners or occupants of lands to construct drains or ditches, for agricultural or sanitary purposes,” implies that the community whose property is to be taxed, may have the right of election in the matter, and a law authorizing a drainage and the imposition of taxes, or special assessments, without any previous vote of the persons affected thereby, is unconstitutional.</p>

<p>1. Fixtures—what passes as realty between mortgagor and mortgagee. Platform scales, fastened to sills laid upon a brick wall, set in the ground, for weighing stock and grain, and intended for permanent use, as between mortgagor and mortgagee, are to be regarded as fixtures belonging to the realty, and will pass to the purchaser, under a decree of foreclosure, unless reserved in the mortgage.</p> <p>2. It is in the power of the owner of the inheritance to affix any property to it he pleases, and when he does so, it becomes a fixture, in the general sense of that term, and part of the freehold; and if the inheritance be after-wards sold or mortgaged, the fixture goes with the freehold, and it wiil also descend to the heir at law.</p>

<p>1. Security por costs—motion to dismiss must be before pleading. A motion to dismiss a suit for want of a bond for costs, in cases where one is required before suing, must be made before a demurrer or plea in bar is filed.</p> <p>2. Same—requiring under see. 2, discretionary. It is a matter of discretion with the court to require security for costs, under the second section of the Cost Act, and its decision can not be assigned for error; and it may set aside an order to show cause why security should be required at any time during the same term.</p> <p>3. New trial—-finding as to facts. A new trial will not be granted by this court when the record does not impress the mind that the verdict is manifestly wrong. It must be clearly against the preponderance of the evidence.</p> <p>4. Same—misconduct of jury. A verdict will not be set aside because each juror set down the amount he was in favor of finding, which they added together, and divided the sum by twelve, where there was no previous agreement the sum thus found should be the verdict, and it was, in fact, for a less sum.</p>

<p>1. Husband and wipe—gift of husband to wife good in equity. A gift from a husband to Ms wife, without the intervention of a trustee, by the common law, was void, at law, but in equity, where the evidence is clear and satisfactory, will be supported as the separate property of the wife, when not prejudicial to creditors of the husband.</p> <p>3. Where a husband and wife were married before the Married Woman’s Act of 1861, and the husband showed, by clear and explicit acts, an intention to give his wife the rents and profits of her land, by having her rents kept separate from his own, and, when sold, paying the proceeds to her, and, when loaning her moneys, by taking notes payable to her, it was held, that, even admitting the rents and profits of the wife’s land belonged to the husband, the acts showed not only an intention to give them to his wife, but was an executed gift, which a court of equity would uphold and enforce as against him. after her death, in 1871.</p> <p>8. In such a case, the husband, in equity, will he required to surrender to her executor or administrator the notes in his possession payable to her, he being held as having them merely as her agent, and to account for payments received by him on such notes, and for money received on the sale of her rents.</p>

<p>1. Evidence—to prove malicious burning of house. In an action on the case for the malicious burning of a house, positive and direct evidence that the defendant did the act is not indispensable to a recovery, but circumstantial evidence is sufficient. Proof of threats immediately preceding the burning, followed by the burning, is sufficient to justify the jury in finding the party guilty.</p> <p>2. Exemplary damages—malioious hv/ming. In the case of a malicious burning of a house, exemplary damages may be allowed.</p>

<p>1. Circuit court—right of a judge to hold court out of his circuit. A judge of one circuit may legally hold court in another, and when the record shows that such is done, it will be presumed he did so by request of the proper judge, it not being 'indispensable that the plácito should show such fact.</p> <p>3. Chancery practice—when party must answ&r to the merits. Where the time for answering a bill in chancery is extended by written stipulation, and in consideration of such extension the defendant is to answer to the merits, he must so answer, and if he pleads in abatement the pendency of another suit, it is proper to strike the plea from the files.</p> <p>3. Practice—time to object to order. If no objection is made at the time to an order of the court for the production of books of account relating to matters in suit, it will be presumed it was made by consent.</p> <p>4. - Same—time to object to depositions. It is too late to object in this court, for the first time, that depositions read in evidence contained no caption or certificate. A motion to suppress must be made in the court below.</p> <p>5. Pleading and evidence—matters admitted by the pleadings need not be proved. Where a bill in chancery and the answer thereto admit the existence of a partnership and an unsettled partnership account, proof of these facts is unnecessary, and a decree requiring an account may find such facts without other evidence than such admission.</p> <p>6. Chancery—when defendant should preserve evidence. Where a decree is justified by the pleadings and the facts recited in the decree, it is the duty of the defendant to preserve the whole evidence in the record by bill of exceptions, or certificate, if he questions its sufficiency to justify the findings of the court.</p>

<p>Negligence—in construction and care of turn-table. Where a turn-tahle, not covered with plank or walled except where the rails of the switch intersected, was constructed, not near to any public street, or place where the public were in the habit of passing, but in an isolated place, and a boy about nine years old, while he and others were turning and riding upon it, was seriously hurt, it also appearing it was latched, but not locked, it was held, in an action by the boy to recover for the injury, that, in view of the isolated position of the table, the railway company was not guilty of such negligence as to render it liable.</p>

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

<p>1. Married women—separate property. The consideration paid or agreed to be paid to a married woman for joining with her husband in a conveyance of his land, whereby she releases her homestead right and her right of dower, will constitute her separate property, which she may manage and control in her own right, as any other property not derived from her husband.</p> <p>3. Consideration—release of rights by wife. When husband and wife unite in a conveyance of their homestead to another, the wife releasing her homestead and dower, and, by the consent of the husband, the grantee gives a bond to the wife to pa) her the proceeds of the property, when sold by him, the release of her rights will constitute a sufficient consideration to support the bond, and it will be a valid obligation.</p> <p>3. Husband and wife—who may assail contract as fraudulent. A party who takes a conveyance from a husband and wife of property belonging to 'the husband, and gives his bond to the wife, obligating himself to pay the proceeds of the property to her when sold, with the assent of the husband, becomes the trustee of the wife, and can not be heard to question the good faith of the transaction as between the husband and wife. None but creditors of the husband can assail the contract as fraudulent.</p> <p>4. When there are no creditors whose rights may be put in jeopardy, it is competent for a husband to create a separate estate for his wife out of his own property, and no one can impeach the transaction, or inquire into its propriety, unless he was a creditor of the husband at the time.</p> <p>5. Agency—evidence of. When a husband receives payments of money on an obligation to his wife, the possession of the obligation is evidence tending to prove he has authority to receive the money for his wife, but is by no means conclusive of that fact.</p> <p>6. Vendor and vendee—;failure of title as a defenseto payment of price. The vendor of land is entitled to the payment of the price agreed to be paid, or to have back the property sold and conveyed. The fact that the title to a part of the premises conveyed or sold, has failed, the purchaser still holding possession, is no defense in an action for the purchase money. The purchaser must reconvey it, or offer to do so, before he can resist payment in such a case.</p>

<p>. 1. Witness—party as .against executor. In a suit by an executor upon a promissory note to the testator, the principal maker is not a competent witness for a surety, to prove a contract with the testator for extending the time of payment, even though his default has been taken.</p> <p>2. Same-^pctriy in general against executor. The statute allowing a party to be a witness, intends that it shall be only in cases where both parties are upon equal grounds, and it does not apply when one of the parties is a representative of a deceased person.</p>

<p>1. Service op process—on agent of corporation. On motion to quash a return of service of a summons against a corporation, which shows service on one ns agent, where the agency is denied, the defendant must disprove the agency, or the motion will be overruled.</p> <p>3. Abatement—to reach defective service. The question whether a summons has been properly served, or served on a proper person, as an agent of a corporation, can not he raised by plea in abatement. Such a plea does not furnish a better writ.</p> <p>3. Appearance—effect on service. By filing a demurrer to the declaration, the defendant is in court, whether the service is sufficient or not.</p> <p>4. Assumpsit—upon sealed policy of insurance. Under the present Practice Act, assumpsit, will lie upon a scaled policy of insurance, the distinction between sealed and unsealed instruments being abolished as to the form of action.</p> <p>5. Evidence—presumption from stipulation as to what was considered. Where a stipulation in an action upon a life policy of insurance was, “ that this cause was submitted to the court on the following agreed evidence,” and stated that the policy and letters of administration should go in evidence : Held, that this was equivalent to saying they should be considered in evidence, and it would be presumed they were, in the absence of a statement to the contrary in the bill of exceptions.</p> <p>6. Presumption—as to sufficiency of evidence. Where the record shows that a policy of insurance was in evidence, but it is not set out in the bill of exceptions, it will be presumed that its provisions warranted the judgment rendered, in an action on the policy.</p> <p>7. Notice—what is to he taken as its date. Where a policy of insurance, providing for assessments, requires that the money must be received by the company in thirty days from the date of the notice thereof, the date will be construed to mean the day it is delivered or received, and not the date 'written in the notice, or the date it is mailed.</p> <p>8. Time—how computed when act is to he done within so many days. Where a party insured is to make payment of an assessment within thirty days from the date of the notice thereof, the day on which it comes to him will be excluded.</p> <p>9. Insurance—right to declare forfeiMwe after death of assured. Where the condition of a life policy of insurance is, that the assured shall, within thirty days from the date of notice, pay any assessment, etc., against him, and a failure to do so shall render the policy void, if the party dies within thirty days after receiving notice of an assessment, the company insuring will have no right to declare a forfeiture for non-payment within the thirty days.</p>

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

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

<p>1. Limitations—must be pleaded. If a party desires to set up the bar of the Statute of Limitations as a defense, he must plead the same.</p> <p>3. Same—does not apply to citation to account. A citation to require a guardian to account, is not an action either at law or in equity, within the meaning of the Statute of Limitations.</p> <p>3. Guardian—power of court to require an account. The statute confers express power on county courts to compel guardians to render their accounts upon oath, and to require additional security when necessary, and in default thereof to remove them.</p> <p>4. SAME-^-accotóraí approved, not conclusive. Although a guardian’s account may have been approved by the county court, he may, afterwards, be charged with moneys received by him which he failed to charge in his account, or if he charged himself with too small an amount, the wards may have the account correctly stated. ,</p> <p>5. Same—settlement with wards. A settlement by a guardian, made with his ward, upon the basis of an erroneous report made by him to the court, is not conclusive on the ward, nor is a receipt given for the balance shown by such report to be due the ward, when it is given under the assurance, if anything else is found to be due it shall not stand in the way.</p> <p>6. Judgment—in vacation. It is error to enter judgment in a case in vacation, where the court adjourns for the term after hearing the evidence, without the consent of the parties.</p>

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

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

<p>1. Limitation—statute applies in favor of municipal corporations. A municipal corporation may avail itself of the Statute of Limitations of two years, in a suit by a private citizen to recover damages for a personal injury.</p> <p>2. Same—statute construed. Section 15 of the limitation law (R. S. 1874) applies only to causes of action on unwritten contracts, express or implied, to awards, to injuries to real or personal property, and to actions to recover possession of personal property or damages for its detention or conversion, and to all civil actions not otherwise provided for. An action for a personal injury being provided for by section 14, is not affected by section 15.</p> <p>3. Same—when cause of action accrues. In the case of personal injury caused by a defective sidewalk, the cause of action accrues at the time the injury is done, and the Statute of Limitations begins to run from that day.</p>

Writ of Error to the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding. This was an indictment against William Fletcher and Eli Fletcher, for selling intoxicating liquors without license. William Fletcher was found guilty under six counts, and the court sentenced him to sixty days’ imprisonment in the jail of Shelby county.

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

<p>1. Bill of exceptions—what it should contain—presumption. Where the bill of exceptions shows the fact that the court gave instructions asked by a party, but does not set them out, this court can not say there is error in refusing others which are preserved, as those given may have comprised the substance of those refused.</p> <p>2. But where the bill of exceptions contains instructions refused by the court, and makes no allusion to any instructions except those refused, this court can not presume others were given embodying the substance of those refused.</p> <p>3. Garnishment—unsettled partnership account. Unsettled partnership accounts can not be adjusted in a garnishee proceeding. When one partner is garnisheed as the debtor of his co-partner, all unsettled partnership claims and accounts will be excluded from the consideration of the jury.</p>

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

William Browe, Judge, presiding. This was an action of debt, brought in the name of the Governor of the State, for the use of the people of the State of Illinois, upon the official bond of Hall, clerk of the circuit court of Stephenson county.

W. W. Farwell, Judge, presiding. This was a bill in chancery by James H. Roberts, for himself and others, creditors of the appellee Hughes, against Hughes, Jacob Hall Pleasants, and Richard H. Pleasants,- to set aside' a levy and sale of real estate on execution and to compel the execution of a power in trust, alleged to have been created by Hughes for the benefit of appellant and his other creditors. The court below sustained a demurrer to the bill.

<p>1. Recognizance—discrepancy in date and approval. A discrepancy in the date of a recognizance taken by a sheriff for a party’s appearance to answer an indictment, and of its approval, as, where the latter is one day prior to the date of the instrument, is unimportant, as it becomes a record only from the time it is filed in the clerk’s office.</p> <p>2. Same—recital of indictment. A recognizance which states that an indictment had heen found hy the grand jury of the proper county, and that the court required a bond for the appearance of the defendant, is substantially good. An omission to state the day, year and term at which the indictment was found, is of no importance.</p> <p>3. Same—misdescription of offense. It is no valid objection to a recognizance, that it recites the finding of an indictment for larceny only, when, in fact, it was for burglary and larceny. If it binds the defendant also to abide the order and judgment of the court, and not depart the same without leave, this will require the accused to appear and answ'er any other charge that may he preferred.</p> <p>4. Same—mistake as to date of ftrst day of term. If the undertaking in a recognizance in a criminal case is for the appearance of the accused on the first day of the next term of the court, a mistake as to the day of the month is immaterial, as he must take notice of the day on which the term commences.</p> <p>6. Same—who may object. Where the blanks in a printed form of recognizance are filled up by a party to it, he can not object to any insufficiency arising from the filling of the blanks, even though the objection he substantial in its character.</p> <p>6. Same—proof as to indictment. The production of an indictment against A and B is proof of an indictment against B, in a scire facias upon a recognizance given hy him. The indictment is several as to each.</p> <p>7. Pleading—mil tiel recognizance. Nul tiel recognizance is not a proper plea in scire facias upon a recognizance. The action, being upon a record, is fully met by the plea of mil tiel record.</p>

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

<p>Statute construed—creating penalty against railway companies and servants. The intention of the statute, sections 52 and 53, R. S. 1874, p. 810, is, to subject the engineer, conductor and the railway corporation, indifferently, to the fine prescribed of not less than §10 nor more than §100, for obstructing highways, by stopping trains or leaving cars standing on any crossing, and not that the corporation shall be liable for the like sum for which the engineer or conductor shall have been convicted.</p>

Oliver L. Davis, Judge, presiding. Herndon & Vanduzen brought trover against the Indianapolis and St. Louis Eailroad Company, in the county court of Edgar county, for the value of certain fruit trees. Judgment was rendered in that court for the plaintiff in the action, for §174.55. The cause was appealed to the circuit court of Edgar county, where judgment was again rendered for the plaintiff for the same amount, from which this appeal is prosecuted.

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

<p>1. Partnership—suit at law by one partner against anoth&r. Where a partnership is actually formed, and proceeds to do business as such, no action at law can be maintained by one of the partners against another for his misconduct as a member of the firm, such as refusing to furnish money to complete the business undertaken, as he had agreed to do in the formation of the partnership, whereby a great loss of profits is sustained. A final settlement of the affairs must first be had, and this can only be enforced in equity.</p> <p>2. Such a case is distinguishable from a case where one refuses to become a partner according to his agreement. There, it seems, he is liable to an. action at law.</p>

Lyman Lacey, Judge, presiding. This was an action of assumpsit, by the city of Lincoln against the Board of Supervisors of Logan County. The material facts appear,in the opinion. The city recovered judgment for $7657.62.

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

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

<p>„ ^ . .... m 1. Deed op married woman—setting aside in equity. Where a married woman sought, in equity, to have a deed, executed by her and her husband, set aside on the ground its execution was obtained by fraud, coercion and duress, the proof showed, that before making the conveyance she advised with others in relation to making it., and after its execution voluntarily gave possession, and took other property, which she occupied and enjoyed for several years, when she surrendered her rights therein for the sum. of $700 from her prior grantee: Held, that her acts and conduct and long acquiescence in the transaction, were wholly inconsistent with the charge of fraud, etc., and that she was not entitled to have the conveyance set aside.</p> <p>2. Acknowledgment of deed—proof to overcome. If the acknowledgment of a deed hy a married woman can be overcome by parol evidence impeaching and contradicting the officer’s certificate, it must be clear and satisfactory, and the acts and conduct of the party seeking the same must not be wholly inconsistent with the claim set up.</p> <p>3. Change of venue—when motion is too late. A motion for a change of venue, in a chancery suit, on the ground of the prejudice of the judge, made after all the evidence has been heard, much of it being oral, comes too late, even though the petition shows that the alleged prejudice came to the knowledge of the applicant on the same day.</p> <p>4. Witness—competency of party as against heirs, etc. On bill by a married woman against the heirs and administrator of a deceased party, to have a deed, executed by her and her husband to the intestate, set aside for fraud, etc., the complainant is not a competent witness to prove the facts upon which she seeks relief, and she being incompetent, so is her husband.</p> <p>5. Homestead—no release required by act of 1851, except as to forced sales. Under the homestead act of 1851 a formal release or waiver of the right or exemption was required only as to forced sales by judicial process. This act had no relation to voluntary alienations, and no waiver or release in such cases was necessary.</p> <p>6. Specific performance—not until payment is made. If a- married woman, under a contract, is entitled to a conveyance for real estate in her possession, upon paying §600, and she accepts $700 for her equitable rights, and surrenders possession to her vendor, she will not be entitled to a specific performance of the original contract, although she may have been incapacitated from malting the latter agreement.</p>

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

<p>1. Mistake—reforming voluntary conveyance. The general rule is, that a court of equity will refuse its aid to decree a specific performance, or rectify a mistake in a contract that is voluntary and without any consideration to support it.</p> <p>3. Same—reformation as against subsequent pmchnser. It is sufficient to authorize the reformation of a deed for a mistake as against a subsequent grantee, that he had notice of the first deed, and the fact that, by a mistake, it failed properly to describe the land will not aid such subsequent purchaser, and he will not be allowed to profit by the mistake.</p> <p>3. Conveyance—consideration. A conveyance of land, made in full payment and discharge of alimony, decreed to be paid by the grantor, though made to the children of the grantor and his former wife, who was entitled to the alimony, is not a voluntary conveyance, but is founded upon a legal and binding consideration.</p>

<p>Writ of Error to the Circuit Court of Calhoun county; the Hon. Cyrus Ebler, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Cumberland county; the Hon. J. C. Allen, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. A. J. Gallagheb, Judge, presiding.</p>

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

This is a petition for mandamus to compel the Auditor of Public Accounts to register a certain new bond issued by Macoupin county, in lieu of a prior indebtedness incurred before March 26, 1872, and since February 13, 1865, and which remained outstanding as a subsisting legal obligation against said county from the 26th day of March, 1872, until re-funded on the--day of December, 1875, into the new bond presented to the Auditor for registration.

Joseph Sibley, Judge, presiding. This was an action of covenant, brought by the appellant against the appellees, upon a written lease, to recover rent for a certain hall in the city of Quincy.

<p>1. Constable’s bond—law in force at the time governs. In determining the liability of a constable and his sureties on his bond, for his official acts, the bond and the statute in force at the time "must be regarded as the contract between the defendants and the public.</p> <p>2. Same—liability for neglecting to levy execution. A constable and his sureties are liable on his bond for any loss occurring by his neglect to levy an execution in his hands, when notified of property in his county; and the illness or sickness of the constable at the time furnishes no defense to the action.</p> <p>3. Constables—duty to turn execution over to another when he can not act. If a constable is ill, or so sick as not to be able to make a levy under an execution in his hands, it is his duty to have the same placed in the hands of some other constable who can act, or to notify the plaintiff in execution, or the justice who issued it, so that they may place it in the hands of some other officer.</p>

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

Writ of Error to the Circuit Court of Fulton county; the Hon. Ohaunoey L. Higbee, Judge, presiding. This was an action on the case, by Laura A. Dickson and her husband, against the appellee, as originally brought.

<p>1. Witness—husband for wife. In an action by a wife to recover damages for injury sustained by her from the sale of intoxicating liquor to her husband, the latter is a competent witness for her.</p> <p>3. Error, will not always reverse. Where the court directs llie jury that exemplary damages may be allowed in addition to the actual damages proved, even if improper, as being in a case where exemplary damages are not allowed, yet if it clearly appears that the verdict is for less than the actual damages, the judgment will not be reversed.</p>

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

<p>Writ of Error to the County Court of Edgar county; the Hon. Geo. K. Larkin, Judge, presiding.</p>

Lyman Lacey, Judge, presiding. This was an action brought by Parlin & Orendorff, partners, against Andrew J. Roberts and others, before a justice of the peace, and taken by appeal to the circuit court, where the plaintiffs recovered judgment.

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

<p>1. Insurance—rescission in equity. The intention-of a party insured to burn the property insured, will authorize the insurance company to declare an immediate cancellation of the policy. But if the company waits until after a loss, a court of equity will not then rescind the contract of insurance. If the assured burns the property, this will avoid the contract, but the remedy is at law.</p> <p>3. Garnishment—consolidation of several suits. If a party is garnisheed by several parties, in respect to a single cause of action, the court, on motion of the garnishee, will consolidate the several suits into one action, so that one verdict will be conclusive of the whole subject matter of the litigation.</p> <p>3. Chancery jurisdiction—defense at law. If a party has a complete defense in suits at law, a court of equity will not assume jurisdiction.</p> <p>4. Same—to avoid multiplicity of suits. Before a court of equity will assume jurisdiction to avoid multiplicity of suits against a party, he must first establish his defense at law, when it is a legal one, and then, if it shall appear that other parties continue to harrass him with suits in respect to the same cause of action, equity would interfere to prevent future vexations litigation.</p> <p>5. Commonly, chancery will assume jurisdiction in the first instance, to prevent a multiplicity of suits, when a party prosecutes or defends against a great number of persons, or when a great number of persons prosecute or defend a right against a single individual.</p> <p>6. Where an insurance company is garnisheed at the separate suit of a great many persons, creditors of the assured, and the company has a complete defense at law, a court of chancery will not assume jurisdiction by injunction, to avoid a multiplicity of suits, until the defense has been established at law, and it is made to appear there is danger the right established will be further and vexatiously controverted.</p>

<p>1. Corporation—liability of stockholder under act of 1849. Under the act of 1849 relating to railway corporations, if a claim is owing by a railway company for services performed for it, a stockholder is not liable in an action therefor, until an execution shall be returned unsatisfied, in whole or in part, against the corporation, and then the amount due on such execution is the amount recoverable, with costs, against the stockholder.</p> <p>2. Default against administrator—presumption. A default in a suit against an administrator, to enforce the liability of his intestate as a stockholder of a railway company, under the act of 1849, admits all the facts properly pleaded, and it will be presumed they were sufficient to justify the judgment rendered therein, when called in question collaterally.</p> <p>8. Administration—presumption as to claim allowed. Where a claim is allowed by the county court against an estate, after the payment of other debts, and the surplus of assets to the heirs, it is prima facie a valid claim, and in a suit against the heirs by the administrator and his securities paying the same, it will be presumed, in the absence of proof to the contrary, that he was liable and the estate bound for its payment, although allowed after two years from the grant of administration.</p> <p>4. Same—administrator's right to recover back money paid to heirs. Where an administrator, after settlement of an estate and the payment of the balance in his hands to the heirs, is compelled to pay a new claim unknown to him within the two years after the grant of his letters, he or his executors may maintain a bill in equity against such heirs, to reimburse him or his estate for the sum so paid, although no refunding bond was taken.</p> <p>5. Heirs—extent of liability for ancestor's debts. The extent of the liability of heirs at law of a deceased person, for a debt of their ancestor, both at law and in equity, is to the full amount of what came to them by descent, and a decree against them should not be several, but joint, requiring each to pay pro rata.</p>

Wbit of Ebbob to the Circuit Court of Champaign county; the Hon. J. C. Alley, Judge, presiding. This was an action on the case, by Julia A. Brooks, administratrix of the estate of William H. Brooks, deceased, against the Toledo, Wabash and Western Railway Company, to recover damages for causing the death of plaintiff’s husband and intestate, through negligence. A trial was had, resulting in a verdict and judgment in favor of plaintiff, for $3166.

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

Thomas F. Tipton, Judge, presiding. This was a prosecution instituted by the appellant against the appellee, before a justice of the peace, for an alleged obstruction of a highway, and taken by appeal to the circuit court, where a trial was had, resulting in a judgment for the defendant.

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

Thomas F. Tipton, Judge, presiding. This was a bill filed by Hillyer against Delia 0. Lewis, John H. Lewis and Midiólas Walsh, to foreclose a mortgage. The court below found against the complainant as to the second note claimed to have been due and unpaid.

Writ of Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. This was an action on the case, by Andrew S. Rutledge, against Philip Crose, for the seduction of the plaintiff’s wife. On the trial, the defendant offered in evidence the record of a divorce between the plaintiff and his wife, granted to the wife on cross-bill, for desertion by the plaintiff.

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

<p>Writ of Error to the Circuit Court of Edgar county; the Hon. Oliver L. Davis, Judge, presiding.</p>

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

<p>1. Recording daw—-priority from recording. A junior mortgage, first, recorded under the recording laws, will take precedence of a prior mortgage, and gives the first lien on the premises, unless the mortgagee therein, at the time he obtained his mortgage, had notice of the existence of the prior one.'</p> <p>3. Mortgage—priority—promise to pay. Where a mortgagee, whose mortgage is first recorded without notice of any prior one, on being informed' of the other mortgage, and assured that it is a prior lien, and while under, such belief, promised to pay it if certain persons would sign a note with him: Held, that the promise, under"such'circumstances, afforded no evidence of notice of the prior unrecorded mortgage at the time the second one was given. ...... • . i</p> <p>3. Same—assumption of payment of second:mortgage debt by holder of first mortgage. Where mortgaged premises are sold and conveyed to a mortgagee having the prior lien, and he agrees, as a part of the consideration, to pay a mortgage debt Which is second to his, a court of equity, will require him to pay it, or order a sale of the land for its payment. ’</p> <p>4. But where the mortgagor executes’a deed to such mortgagee, not in’ payment of his mortgage but as an additional security only, the mortgages’ will not be bound to pay a second mortgage debt, although his deed may, recite that it is in consideration of his mortgage and the balance due on the second mortgage, and he may show by parol what was the real considera-' tion. ....</p> <p>5. Parol evidence—to show consideration of deed. The grantee in 'a' deed may show by parol evidence the real consideration for his deed, even though it may contradict recitals therein. ;</p> <p>6. Merger—deed by mortgagor to mortgagee. A deed by a mortgagor; to a mortgagee, intended as additional security only, and not as a satisfaction of the mortgage, will not merge the mortgage in the greater estate, so as to give priority to another mortgage which is a second lien:</p> <p>7. Same—general rule. It is well settled that where a greater and less' estate meet in the same person, a merger .does not necessarily follow. Thaty will depend upon the intent and interest of the parties, and if a court per-i ceives it necessary, to advance the ends of justice, that the two estates shall be kept separate, it will so regard them.</p>

<p>Wkit op Eebob to the Circuit Court of Tazewell county;: the Hon. John Buens, Judge, presiding.</p>

Writ of Error to the Circuit Court of St. Clair county; the Hon. W. H. Snyder, Judge, presiding. The statute, the validity of which js involved in this case, may be found in 68 Ill. 35.

<p>1. Railway company—not liable to parties guilty of fraud in procuring passage. Where a person knowingly induces the conductor of a train of cars to carry him on such train without paying fare, contrary to the rules of the company and the instructions to the conductor, it is a fraud upon the company, which will preclude a recovery by such person for any injury sustained whilst being so carried.</p> <p>2. Husband and wife—husband fraudulently obtaining passage for wife on railroad. Where the husband, whilst traveling with his wife, fraudulently induces a conductor to carry them without paying fare, contrary to the conductor’s instructions, the husband is the agent of the wife, and she will be chargeable with notice of all regulations of the company of which the husband is apprised.</p>

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

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

<p>1. Cities and towns—liability of, for defects in streets and, sidewalks. Obstructions or defects in the streets or sidewalks of a town or city, to make the corporation liable for injury occasioned thereby, must be of such a nature that they are in themselves dangerous, and can not be readily detected, or such that a person exercising ordinary prudence can not avoid danger or injury in passing them.</p> <p>2. Negligence—by pasty injured upon public street. If a person, who is acquainted with a sidewalk over which he is passing in daylight, walks upon a portion of it which is obstructed with an accumulation of ice, when there is plenty of space on either side for him to pass along and avoid such obstruction, he is guilty of such want of care as to preclude his recovery from the city for any injury he may sustain by reason of such obstruction.</p>

Cyrus Epler, Judge, presiding. The motion, referred to in the opinion of the court, was, to dismiss the cause for the reason that an insufficient bond for costs was filed therein.

<p>1. Attachment — issue on plea to the affidavit. Where an affidavit states, as ground for an attachment, that the defendant, within two years preceding the filing of the affidavit, had fraudulently conveyed and assigned his property, so as to hinder and delay creditors, and the defendant, hy his plea, traverses the affidavit, the only question is whether the defendant has, within two years before the commencement of the suit, fraudulently conveyed or assigned his effects so as to hinder or delay his creditors.</p> <p>2. Where the issue in an attachment suit is whether the defendant has fraudulently conveyed or assigned his property within two years preceding the commencement of the suit, so as to hinder and delay his creditors, the question whether goods sold by him were delivered to the purchaser so as to pass title as against his creditor, is not presented.</p> <p>3. Same—non-delivery of goods not evidence of fraudulent sale: A sale of goods made in good faith for a valuable consideration, although there is not such a delivery as to pass title to the purchaser as against the creditors of the seller, does not amount to a fraudulent assignment or conveyance so as to hinder and delay creditors, within the meaning of the Attachment Law.</p>

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

<p>Injunction bond—damages must he assessed on dismissal of injunction suit. The act of 1874, providing that a failure to assess damages on the dismissal of a suit where an injunction is granted shall not operate as a bar to an action on the injunction bond, only applies to bonds entered into after it took effect, and has no operation as to bonds entered into before that time, although the dismissal of the suit may be subsequent thereto.</p>

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

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

<p>1. Road ard bridge tax—can not be extended without action of the board of supervisors. The requirement of sec. 120, of chapter 121, of the Revised Laws of 1874, that the statement of the commissioners of highways of the amount necessary to be raised for the making and repairing of bridges, laying out, opening and altering roads, etc., shall be submitted to the board of supervisors, at its annual meeting in September, for its action, is jurisdictional, and unless it is complied with, and the action of the board is had thereon, the county clerk is not empowered to extend the tax.</p> <p>2. Same—certificate of town clerk does not authorize extension of tax by county clerk. The county clerk is not authorized to extend a road and bridge tax on the township collector’s book, merely upon the certificate of the town clerk that the commissioners of highways, at a meeting at his office, had assessed a certain amount on the real and personal property of the town, to defray road and bridge expenses of the town for the ensuing year.</p> <p>3. Ministerial officer—not protected in execution of certain process. A ministerial officer is not protected in the execution of process, though regular on its face, if he has knowledge of facts which render it void.</p> <p>4. Tax collector—not protected by warrant when he laiows facts which render it void. The commissioners of highways failed to deliver to the board of supervisors a statement of the amount of taxes required for road and bridge purposes for the ensuing year, although it was made and left with the town clerk, to be by him delivered to the supervisor, and consequently the board of supervisors did not act upon it at their regular meeting in September. In October the town clerk filed with the county clerk a certificate of the fact that the highway commissioners had made such a statement, at a meeting held at his office in September, and thereupon the county clerk extended the road and bridge tax on the collector’s book, in accordance with such certificate, and delivered the book, with the collector’s warrant attached, to the town clerk, who was also the collector: Held, that he was not protected as collector in the execution of the warrant, so far as the road and -bridge tax was involved, having knowledge of the facts which rendered it void.</p>

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

<p>1. Presumption—in favor of regularity of judicial proceedings. Where the record in a case shows an adjournment of the circuit court, during the September term, to a certain day in November, and the next entry appears to be made on the 1st day of December, which the record states is one of the days of the September term, the presumption is, the court was duly convened on the day in November to which it was adjourned, and that the term was continued by regular adjournments, or that in the absence of the judge the regular adjournments were made by the sheriff as provided by statute.</p> <p>3. Grand jury—when venire for special should issue. Where the record shows merely that the grand jury has been discharged, it will be presumed that it was properly discharged, and in such case, where it turns out that there is some new matter which calls for the action of a grand jury, it is proper to issue a venire for a special grand jury.</p> <p>8. Criminal law— death penalty. It is error to order the death penalty to be executed before the 10th day of the term of the Supreme Court occurring (in either of the grand divisions) next after pronouncing judgment.</p> <p>4. Same—merely consenting to the commission of a crime does not make a party a principal. It is error to instruct the jury that one who stands by when a crime is committed, and consents to the perpetration of the crime, is a principal in the offense and must be punished as such.</p> <p>5. Accessory after the fact. "Where two parties are alone present at the time of the killing of another, and but one does the killing, and the other does not aid, abet or assist in the killing, but afterwards they both with guilty knowledge conceal the fact of the crime, the one not participating in the crime is only guilty as an accessory after the fact, and is not guilty of murder.</p> <p>6. Same—accessory before the fact. An instruction that an accessoiy before the fact is one who, being present at the time of the commission of a crime, aids in concealing the party who actually commits the same, or aids in concealing evidence of guilt as to the one actually committing such crime, and is equally guilty with the principal, is erroneous, in ignoring the idea that he may, at the time the crime was committed, have done all he could to prevent its perpetration, though afterwards he may have concealed the knowledge and evidence thereof. _</p> <p>7. Separate trials—where several indicted. Where two were indicted for murder, and both parties tried hy the same jury, it appeared that many portions of the evidence competent as against one, from the peculiar circumstances surrounding the case were not competent against the other, and still, in effect, very damaging to the party against whom such testimony was not competent. It was held, the defendants should be given separate trials.</p>

<p>Common carrier—not discharged by delirery of goods to another earner unless by special contract. Where goods are delivered to a common carrier to he carried to a designated place, and the charges for transportation to that place paid in full, and the goods are received by the carrier without any contract limiting his liability, such carrier is responsible for the delivery of the goods at the place designated, notwithstanding its line ends before reaching such place and the goods are delivered to another carrier in good order at the termination of its line.</p>

<p>1. Release of mortgage lien does not release debt on the note. Where several notes, falling due at different times, are secured by a mortgage upon real estate, a release of the lien of the mortgage as to part of the land mortgaged, at the request of the mortgagor, and to enable him to sell free of the incumbrance, is not a release or discharge of the indebtedness evidenced by the notes.</p> <p>2. Where notes are secured by a mortgage on real estate, and upon the maturity of a part of them the mortgagor sells a portion of the land, and the mortgagee releases his lien on the part sold, and receives the purchase money in payment of the notes then due, he does not thereby release his right to sue for and recover the amount of the other notes when they become due.</p>

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

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

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

<p>Pleading—plea must answer all it purports to. A plea to the whole declaration which sets up matter in answer to the special counts only, and leaves the common counts unanswered, is had on demurrer.</p>

<p>Writ of Error to the Circuit Court of Greene county; the Hon. Cyrus Epler, Judge, presiding.</p>

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

<p>Writ of Error to the Circuit Court of Edgar county; the Hon. Oliver L. Davis, Judge, presiding.</p>

<p>Guabdian’s sale—whether allowed for purpose of paying off a mortgage on property to be sold. A petition by a guardian for leave to sell the real estate of his wards, for the purpose of paying off a mortgage thereon, should not be entertained unless there is something shown in the petition more than the mere opinion of the guardian, by which the court can see that such a sale would be more advantageous to the interest of the wards than a sale upon the foreclosure of the mortgage.</p>

<p>1. Possession—by heir, not adverse to co-heir. Where two of the heirs residing with the ancestor, on land owned by him at the time of his death, continue to reside there after his death, but set up no claim to an exclusive ownership of the land, their possession at the time of the death of the ancestor, and subsequently, is not adverse to the other heirs.</p> <p>2. Adverse possession—clear evidence of a disseizin necessary, as between co-heirs. Where one of the heirs is in possession at the time of the death of the ancestor, it requires clear and satisfactory proof of a subsequent disseizin of the co-heirs, to characterize such possession as becoming adverse, so as, by lapse of time, to bar the right of entry of the co-heir.</p> <p>3. Disseizin—of co-tenant. To constitute a disseizin of a co-tenant, there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as, by their own import, to impart information and give notice to the co-tenant that an adverse possession and an actual disseizin are intended to be asserted against him.</p>

<p>1. Chancery—-facts found hy decree upon hearing on proofs, binding on parties, though minors. Where the decree states that a hearing was had upon proofs, and the facts are found hy the court in the decree, it will hind the defendants, though they are minors, unless the decree purports to give the evidence, or refers to it in the record, and, upon inspection, it is insufficient to warrant the conclusion at which the court has arrived.</p> <p>3. Lien—for purchase money of land under loritten contract may he enforced in name of assignee. Where land is sold, and a written contract executed hy the parties, whereby the vendor retains the title to the land as security for the unpaid purchase money, and the vendee executes his notes for such purchase money, the notes and contract will hfe considered as one instrument, and regarded as a security in the nature of a mortgage, which may he sold and assigned, and enforced in the name of the assignee hy decree in equity.</p>

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

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

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

<p>County—liability on order of supervisor under Pauper Law. In a suit against the county for the price of goods delivered to different parties upon the order of a supervisor, where, from the evidence, it appears that in some of the instances the goods were properly furnished to the parties on the orders, under the law in regard to paupers, whilst in others there was no evidence showing that the parties supplied were or were not paupers, within the meaning of the law,' the jury disallowed, a large portion of the claims, and rendered a verdict for only a small portion: Held,, that the verdict was not so manifestly against the evidence as to require that it should he disturbed.</p>

<p>1. Husband and wire—-fraud upon wife by husband acting as her agent. Where a husband is authorized by his wife to buy property for her as her agent, and the seller knows that the husband is such agent, he is also charged with knowing that power to the husband to appropriate to himself any portion of the money of his wife is not implied from such agency, and if money is so appropriated by the husband by arrangement with the seller, it is a fraud upon the wife, for which she can recover against the seller.</p> <p>2. Same—pm'ty to fraud upon wife by husband liable to wife. Where a husband, as the agent of his wife, buys land for her at a certain price, but, by an arrangement between him and the seller, double that price is paid, and the excess repaid to the husband and appropriated to his own use, without the knowledge of the wife, and without express authority from the wife, she can recover the amount of such excess from the seller, in a suit for money had and received to her use.</p> <p>3. Same—misrepresentation by husband,. Where a husband, as agent for his wife, buys property, and, by arrangement between him and the seller, more money is paid than the contract price, and the excess is repaid to the husband and appropriated to his own use, without the knowledge of the wife, the fact that the husband may have stated to the seller that the wife was aware of and consenting to the arrangement, will not relieve the seller from liability to the wife in an action by her against him for money had and received to her use.</p>

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

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

Olives L. Davis, Judge, presiding. This was an action of assumpsit, brought by the appellee against the appellant. The declaration contained only the common counts, to which the general issue was pleaded, under an agreement that any evidence might be offered under it that could be offered under any plea properly pleaded.

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

<p>1. Animals—-ferae natures. A buffalo which has been captured when a calf, and reared on a farm with domestic cattle, and become so tame as to take food from the hands of its master like other cattle, and to be easily driven home when it strays away, is no longer of a wild nature, but is the subject of property, and for any trespass committed by it the owner is liable, and for any injury done to it by others he can recover damages.</p> <p>2. Trespass—what amounts to a license. The expression “ go and kill him if you want to,” made in May, by the owner of an animal, in a heated conversation with one who was complaining of a trespass committed by it, and in reply to a threat to kill it, is not a license to such person to kill the animal in September following.</p>

<p>1. Chattel mortgage—when mortgagee must take possession. The mortgagee in a chattel mortgage is not required to take possession of the mortgaged property, in order to hold it against creditors and subsequent purchasers of the mortgagor, until the expiration of the days of grace on the note which the mortgage is given to secure.</p> <p>2. Where the last day of grace on a note, secured by chattel mortgage, is Saturday, there is no breach of the condition of the mortgage requiring the mortgagee to take possession, until the following Monday.</p> <p>3. Same—reasonable time allowed mortgagee to take possession after condition broken. The mortgagee in a chattel mortgage is entitled to a reasonable time, after condition broken, within which to take possession of the mortgaged property; and what is such reasonable time depends upon the situation of the parties and the circumstances attending the particular case.</p> <p>4. Same—purchaser of mortgagor before condition broken. A purchaser of personal property from a mortgagor before condition broken, takes it subject to the mortgage, and is and can be in no better position in relation thereto than the mortgagor himself.</p> <p>5. A purchaser from a mortgagor before the maturity of the mortgage debt, occupies the same relation to the mortgagee that the mortgagor does, and can not be heard to dispute the right of the mortgagee to possession of the property, after the maturity of the debt, on the ground of laches in not reducing it to possession as soon as the indebtedness matured.</p>

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. J. C. Allen, Judge, presiding.</p>

<p>Payment—when agent authorized to receive. Where an agent for the sale of safes sold a new safe, and took an old one in part payment, which was reported to the principal, who accepted the old safe and sent the one sold to the purchaser, without any notice to him that the agent had transcended his authority, it was held, that the purchaser had a right to suppose that the agent was authorized to receive pay for the safe so sold hy him, and that payment hy the purchaser to such agent was good as against the principal, if made without any notice that the agent was not authorized to receive it.</p>

<p>1. Contract—of sale of grain for future delivery not prohibited by statute. The statute does not prohibit a party from buying or selling grain for future delivery, nor does it make any difference as to the legality of the contract, whether the party selling for future delivery has the grain on hand at the time of such sale or not.</p> <p>2. Optional contract. A contract for the sale of grain for future delivery, w'hilst it may give the purchaser an option to select a day within a limited time on which he will receive the grain, does not constitute such an option to buy at a future time as is prohibited by the statute.</p>

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

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

<p>Wbit oe Ebbob to the Circuit Court of Effingham county; the Hon. Hibam B. Decius, Judge, presiding.</p>

<p>1. Lien—on railroad property for labor and material furnished. Under the act of 1861 relating to liens on railroads, no one is entitled to a lien unless his contract was directly with the railroad company, and he commences proceedings to enforce it within three month after an action accrues to him.</p> <p>2. Same—under act of April 3, 1872. The act of April 3,1872, (Session Laws, 279), which gives sub-contractors a lien upon railroads for labor and materials furnished, relates only to labor and materials furnished after its passage, and gives no right to a lien for labor and materials furnished before its passage.</p> <p>3. Remedy—against consolidated railroad company—whether at law or in equity. Where a consolidated company becomes, by virtue of the con. solidation, liable for the debts of the companies composing it, the credi tor’s remedy is complete and adequate at law, and a court of equity will not assume jurisdiction to enforce it.</p>

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

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

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

<p>Trespass—license from one occupant of a common inclosure no protection against suit by other occupant. Where two persons occupy adjoining lands, inclosed with one fence and forming one field, and one of them authorizes a third person to turn cattle into the inclosure, representing to such third person that he owns the whole, and the cattle go upon the land of the other occupant, the party turning them in is liable in trespass for all damage done by the cattle, notwithstanding he may have believed that the occupant giving him the license had full authority so to do.</p>

Writ of Error to the Circuit Court of Vermilion county; the Hon. O. L. Davis, Judge, presiding. This was a motion made in the Vermilion circuit court, in August, 1875, to reinstate the cause, and amend the record so as to correspond with the judge’s minutes.

<p>Cutting timber—penalty for, when, may he recovered. Where a purchaser of swamp land from the county fails to comply with the contract of purchase, and the county declares a forfeiture of the contract, and sells the land to another, such last purchaser is entitled to recover the penalty provided by the statute to prevent trespass by cutting timber, in an action of debt against the first purchaser, for timber wilfully and knowingly cut or caused to be cut, by him, on the land, after the delivery of the deed by the county to such second purchaser.</p>

<p>¡ 1. Courts—power of, over their own process. Courts of record have power over their own process, which does not depend upon statutory enactments, but which is coeval with the common law courts, and they will recall and quash their process, where it appears that it is illegal or inequitable to permit its further use and to allow it to be enforced.</p> <p>2. Same—will recall execution and compel the allowance of proper aredits. Where an execution debtor, against whom a judgment has been rendered on a garnishee process, at the suit of a creditor of his execution debtor, and who has paid the same, lenders to the officer the amount due on the execulion against him, less the amount paid on the garnishee judgment, the court out of which the execution issued will recall it and compel the plaintiff therein to credit the amount of such garnishee judgment thereon.</p> <p>3. GrARNrsnMENT—efect of payment by garnishee before judgment is made absolute. Where, after a conditional judgment against a garnishee, and before it is made absolute, the garnishee, supposing he is bound to do so, pays the amount, and the judgment upon which the garnishee process issued is credited therewith, and the conditional judgment is, through misapprehension of the parties, satisfied, and afterwards it is made absolute, the garnishee will be entitled to a credit as against his creditor for the amount paid upon the conditional judgment.</p>

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

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

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

<p>1. Execution—variance between execution and judgment on which it is issued. A variance between an execution and judgment may be so marked as to raise the inference that the judgment mentioned in the writ is not the judgment upon which the writ issued, but such inference may be rebutted by proof; and if it appears that, in fact, the judgment in question is the one upon which the writ was issued, the variance, though an irregularity, does not render the writ void.</p> <p>2. Same—levy on personal property vests title in ihe officer. The taking of goods subject" to execution, by a sheriff or constable, by operation of law vests the title in the officer making the levy, for the purpose of realizing funds to apply on the judgment, and the title thus vested remains until divested by subsequent proceedings.</p> <p>3. After the return day of an execution it has no vitality, whether returned by the officer or retained in his possession, but the title to goods seized under it during its life, remains in the officer seizing them, and he may sell them by virtue of his title acquired by the levy.</p> <p>4. Same—amending execution. Where an execution is amended after a levy and seizure of goods under it, even if such amendment has the effect to destroy the writ, the title of the officer seizing the goods remains unimpaired.</p>

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

Charles S. Zane, Judge, presiding. This was an action originally brought before a justice of the peace, by James L. Short, against Gr. S. Dana. On appeal to the circuit court, the cause was tried by the judge, without a jury, resulting in a judgment of $104.35 in favor of the plaintiff. The defendant sent the plaintiff a letter, of which the following is a copy: Springfield, Ill., Sept. 21, 1874.

<p>1. School trustees—of one township liable 'to trustees of another, for money had and received to its use. A congressional township was divided by a county line, so that the north half was in one county and the south half in another, but the school fund was held as a common fund, and distributed among the districts of the township in each county. The south half was united with the township adjoining it on the south asoné township, under the township organization law. The counties both donated a portion of the proceeds of swamp lands to the school townships, and distributed it according to the geographical area in each. The portion of the fund belonging to the south half of the township divided by the county line, by order of the county authorities, came into the hands of the treasurer of the township to which it was joined under township organization, and afterwards the county board ordered such fund to be paid over to the treasurer of the township so divided by the county line, which at a meeting of the trustees of the two townships had been agreed should be done, if the county board would make such an order: Held, that upon refusal to comply with the order to pay over the money, by the treasurer and trustees in whose hands it was, the trustees of the township entitled to it could recover it from the trustees of the other township, in an action for money had and received.</p> <p>2. School districts—liable for money had and received. School districts, like individuals, must, when they obtain and hold the money of another, be held to refund it.</p>

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

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

<p>1. Limitation—title deducidle of record under act of 1835. Where the plaintiff deduces title through a sale on execution against one who had a connected title deducible of record from the United States, and a deed in pursuance of such sale, and the defendant also deduces title through a subsequent sale on another execution issued on a junior judgment against the same party, and a deed in pursuance of such sale, the defendant has a connected title in law deducible of record from the United Slates, within the meaning of the act of 1835.</p> <p>2. Same—actual residence under act of 1835, may de dy tenant or 'vendee under contract of sale. The actual residence required by the act of 1835 need not be by the owner of the title, in person. It is sufficient if the owner has possession by actual residence, and such residence may be by tenant or by one under a contract to purchase.</p> <p>3. Construction op statute. Where one State adopts a statute in force in another, which has been construed by the courts where the act was in force, it is adopted with the construction given to it by such courts.</p>

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

Lyman Lacey, Judge, presiding. This was a petition, by the appellants, against the appellees, to enforce a mechanic’s lien, for a lightning rod put upon a building. The court below sustained a demurrer to the petition, and dismissed the bill.

<p>1. Vendob’s lien—not transferable. A vendor’s lien does not pass to the assignee of the note given for the purchase money of land, and will not be enforced in his name.* </p> <p>2. Same—by administrator of vendor. Where the vendor of land dies before the full payment of the purchase money, and without transferring the note given for the price, the lien can be enforced by his personal representatives for the benefit of the estate, and a contract to sell the note after bill filed, without an assignment, will not defeat the suit.</p>

Writ of Ebrob to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. This was an action on the case, by Alexander Arbuckle against Asher Merwin, for fraud and deceit in the sale of Missouri land. The plaintiff recovered in the court below.

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

<p>Writ or Error to the Circuit Court of Morgan county.</p>

<p>1. Chancery—bill, as to incorporation of a defendant. On hill to foreclose a mortgage given for the purchase money of land sold, where a foreign corporation, subsequent to the mortgage, acquired some interest in the property by a certain name, it is sufficient to make such corporation a party in the name it acquired the interest, and it is not necessary to aver that such party is a corporation, no personal decree being sought against it.</p> <p>2. Party in chancery—wife of mortgagor, on bill to foreclose. The wife of a mortgagor, where the mortgage is given for the purchase money of land sold, is not a necessary party to a bill to foreclose the mortgage.</p> <p>3. Practice in Supreme Court—error not affecting party. A party in this court can only complain of an error which affects his own interests. Therefore, on hill to foreclose a mortgage, a party can not complain that another, who makes no objection, was not properly brought into court by publication.</p>

<p>Writ of Error to the Circuit Court of Pike county; the Hon. C. L. Higbee, Judge, presiding.</p>

Thomas F. Tipton, Judge, presiding. This was a garnishee proceeding, brought by C. M. Foster & Co., against Fitzwilliam & Sons, to garnishee wages due from defendants to Frank J. Hoffman. The court below found for the defendants.

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

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

Joseph Sibley, Judge, presiding. This suit was commenced by John Meyer & Co., before a justice of the peace, by attachment against the appellant corporation, and the United States Express Company served as garnishee. The case was taken to the circuit court by appeal. The court rendered judgment in favor of the plaintiff, and against the express company as garnishee.

This is a petition under chapter 87 of the R. S. 1874, praying a mandamus against Hake, as mayor of East St. Louis, and the clerk, to compel them to issue and deliver to the relator a certain certificate for $210, payable out of a special appropriation of $1000, made hy the city for its health department, for the year 1876.

Lyman Lacey, Judge, presiding. This was =a contest of an election, by bill in chancery, between the cities of Beardstown and Virginia, respecting the removal of the county seat. The case was submitted, and decided by this court at the January term, 1875, and is reported in 76 Ill. 34, where the facts are more fully stated. A rehearing having been granted, the following opinion was filed.

<p>Writ of Error to the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.</p>

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

<p>Wbit oe Ebbob to the Circuit Court of Ogle county.</p>

This was a bill in equity, by Adele Williams, against Daniel P. Rhodes, Thomas Dobbins, Richard Gregg, Robert Williams, Robert M. and Stephen A. Douglas, to set aside a sale of certain real estate made by Rhodes, as executor of the last will of the late Stephen A. Douglas. The cause was heard upon bill, answers of the several defendants, replication thereto and proofs. The court below dismissed the bill, and the complainant appealed.

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

<p>School law—compensation to county superintendent for holding teachers' institute. Under the statute in force July 1, 1872, a county superintendent of public schools had no lawful authority to hold a teachers’ institute, and thereby charge his county for such services, unless the institute had been provided for by the county board, which had complete control of the subject.</p>

Writ of Error to the Circuit Court of Kane county; the Hon. Hiram H. Cody, Judge, presiding. This was an indictment against John G. Kibs, for larceny, as at common law. The defendant was convicted, and sentenced to the penitentiary for two years.

<p>Practice in Supreme Court—when a party may hare his own decree reversed. Where, on bill to foreclose a mortgage, there is no service on part of the defendants, and no guardian act litem is appointed for such as are shown to he minors, the complainant may have a decree of foreclosure against all the defendants, in his favor, reversed.</p>

W. W. Far well, Judge, presiding. This was a bill in chancery, by John Steinmetz and John JD. Zernitz, executors of the last will and testament of Peter H. Fischer, deceased, against Anna Barbara Lang and Charles Lang, administrators of the estate of Michael Lang, deceased, and others, to foreclose a deed of trust.

<p>1. Chancery—party must recover on case made in pleadings. A party in equity can not recover on a case, not only different from that made by the pleadings, but absolutely inconsistent with it.</p> <p>2. Agency—by ratification. A subsequent ratification in matters of agency is equivalent to an original authority.</p> <p>3. Same—act of agent can not be ratified in part. A ratification of an agreement concluded by an agent can not, in the absence of the express consent of the opposite party, be limited to a part of the agreement. The acceptance of a part, with full knowledge of the whole, is constructively an acceptance of the whole.</p> <p>4. Chattel mortgage—can not be extended to embrace new matters. A chattel mortgage, given to secure certain indebtedness therein expresed, can not be so extended as to become a lien for the amount of an award for other and different indebtedness.</p> <p>5. Same—rights of mortgagee as to expenses, etc. "Where a mortgagee is compelled to replevy mortgaged chattels after default, he will be entitled to be reimbursed for all necessary expenditures made to acquire possession, and, if the mortgage so provides, a reasonable compensation for his own time while necessarily engaged in the matter.</p> <p>6. Parol evidence—to explain consideration. The general rule is, that the recital of payment of the consideration in a deed for the conveyance of land may be contradicted, provided it is not sought, by the evidence offered for that purpose, to impair the effect of the deed as a conveyance.</p> <p>7. Same—to show consideration of lease. Parol evidence is admissible to show that a part of the consideration of a lease was for rent past due, as it can not affect or impair the lease in any way, or vary its legal effect.</p> <p>8. Same—on claim of failure of consideration. Where a chattel mortgage is given to secure the payments specified in a lease of property, and on default of a payment, possession is taken of the mortgaged chattels before the term is ended, and it is claimed by the lessee, who is the mortgagor, that the consideration has failed in part, the mortgagee may show, by parol evidence, that a part of the money provided to be paid in the lease, was for rent due on a prior lease, as showing the consideration has not failed, and this as against a subsequent purchaser of the chattels with notice of the facts.</p> <p>9. Fraudulent co’svkíxsge.-—preference of creditor. The law allows a debtor in good faith to prefer a particular creditor; and a sale to a creditor, even while the goods are in the possession of an officer replevying them under a chattel mortgage, when the creditor is seeking to secure his debt in good faith, is good, after satisfying the prior lien thereon.</p> <p>10. Liquidated damages—not favored in equity. A court of equity will rarely, if ever, enforce a forfeiture, but usually content itself with compensating the party for what he has lost. A claim for liquidated damages will be refused, where the breach of the contract is the non-payment of money, but interest will be awarded.</p> <p>11. Landlord and tenant—right of tenant to he credited for repairs. If a tenant makes repairs or improvements on the demised premises in excess of the sum agreed on by the landlord, he can not be allowed credit for such excess as against the rent, though made under the direction of an agent, when the agent had no authority to consent to the same, unless the landlord afterwards ratifies the agent’s act or approves of the same.</p> <p>12. Same—damages for not making improvement hy landlord. Where a landlord agrees to complete an addition to hotel property rented by him, but no time is fixed, and the tenant is to pay for the principal part of the cost, the latter can not be allowed damages as against the rent claimed, when it appears he did not pay his part for the work already done.</p> <p>13. Same—what is an eviction hy landlord. The taking possession of hotel furniture by the landlord, under a chattel mortgage given by the tenant to secure the payment of rent due and to become due, upon default of its condition, is not an eviction of the tenant by the landlord so as to terminate the tenancy and stop the rent; neither will any delay in executing the writ of replevin for the goods, sanctioned by the lessee, or by the officer without authority from the landlord.</p> <p>14. Acts of a landlord in interference with the tenant’s possession, to constitute an eviction, must clearly indicate an intention on the part of the landlord that the tenant shall no longer continue to hold the premises.</p>