Volume 82 — Illinois Reports

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

Thomas F. Tipton, Judge, presiding. This was an action of replevin, brought by the appellant against the appellee, toyecover the possession of 2500 bushels of corn. The defendant justified the taking, as sheriff, under an execution against Joseph Bongard, the husband of the plaintiff, alleging ownership in the husband. The jury found for the defendant, and judgment was rendered accordingly.

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

Thomas F. Tipton, J udge, presiding. This was a bill, filed by Andrus, against Martha J. Coleman, to enforce a vendor’s lien. The cause was heard upon bill, answer, replication and proof, resulting in a dismissal of the bill, and complainant appealed.

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

<p>New trial—ore finding from evidence. Where the evidence as to a particular issue is conflicting, a new trial will not be granted unless the finding of the court, where the trial is without a jury, is palpably against the weight of the evidence.</p>

<p>1. Continuance—party's attorney may make affidavit. It is no valid objection to an affidavit for a continuance, that it is made by the defendant’s attorney, where the defendant is a non-resident, and there is no personal service on him.</p> <p>2. Same—less diligence required, when there is no actual service. Where there is no personal service of process on the defendant in attachment, and a copy of the notice is not mailed to him, and lie learns of the pendency of the suit too late to take depositions to prove facts material on the defense, the court should grant him a continuance. The same degree of diligence will not be required as in case of personal service.</p> <p>3. Set-off — of executions. If one party assigns a judgment in his favor to a third person, who has no notice of the defendant’s equities and rights, the assignee will be protected, and, in such case, the defendant can not set-off any subsequent recovery by him, against the same.</p>

Clair county; the Hon. William H. Snydek, Judge, presiding. This was an action of assumpsit, by the appellee against the appellants, Matthew Hamilton, Charles Dombach, and P. Bauman & Bros., to recover back money paid for their use as guarantor of' their promissory note. The plaintiff had judgment, from which Hamilton and Dombach appealed.

<p>1. Statute op Frauds —performance to take case out of Possession taken of land by a purchaser under a verbal contract, the making of substantial improvements thereon and payment of the purchase money, will take the case out of the Statute of Frauds, and entitles the purchaser to a decree for specific performance.</p> <p>2. Default—admits material facts alleged. Where a bill for specific performance is taken for confessed as to the original vendor, and it alleges that he is equitably bound to convey one-lialf of the land sold, the complainant having purchased a half interest from the original vendee, and paid his part of the purchase money, the vendor, by his default, admits the complainant’s right to a conveyance, and can not be heard to object that the whole price has not been paid.</p>

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

<p>Writ op Error to the Circuit Court of Jasper county; the ‘ Hon. James 0. Allen, Judge, presiding. .</p>

<p>1. Nuncupative will—must he in last illness. At common law, it was not essential to the validity of a nuncupative will that the testator should have been ill at all. The statute is a limitation of the common law power, and requires that it shall be made in the testator’s last illness.</p> <p>2. Same—what is last illness. If a person, in a sickness, from which he afterwards dies, being impressed with the probability of approaching death, deliberately makes his will in conformity to the statute, it will not be rejected because he may, in fact, have had time to reduce it to writing. It is not necessary that he should have no hope of recovery.</p> <p>3. Same—request to attest. Under the statute, no formal request of the testator to the attesting witnesses is required. It is sufficient if his desire is clearly manifested that they bear witness to the same.</p>

<p>Warranty—by representations. No particular words or form of expression is necessary to create a warranty, but there is a distinction as to the legal effect of expressions, when used in reference to a matter of fact, and when used to express an impression or opinion. Where the representation is positive, and relates to a matter of fact, it constitutes a warranty.</p>

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

William H. Snyder, Judge, presiding. This was an action brought by the appellee against the appellant, to recover damages for the breach of a contract to sell and deliver certain pottery ware. The plaintiff recovered judgment for $61.66, and costs.

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

<p>1. Consideration—agreement of wife to return to her husband. Where a wife had separated from her husband for drunkenness and ill-treatment, and brought suit for a divorce, the dismissal of the suit and her agreement to live with him, which is done, is a sufficient consideration for a promissory note given by the husband to a third person for the use of the wife.</p> <p>3. Same—duty of husband to support wife, a good consideration. A husband being under a legal obligation to support his wife, an agreement on his part to pay money to a trustee for her use, without any promise or agreement on her part, will be binding on him, and is founded on a sufficient consideration.</p> <p>3. Husband and wipe—settlement on wife binding. The power of a husband to make a settlement of property or funds on his wife by the intervention of a trustee can not be questioned; and a settlement thus made can be questioned only by existing creditors of the husband. His obligation to support her, and the relation of the parties, furnish a sufficient consideration to support the same.</p>

<p>1. Chancery jurisdiction—-judgment without service or appearance. Where a bill in chancery shows the taking of judgment against the complainant for a much larger sum than was due, in an action at law, without service of process, or appearance in person, or by attorney, and without any knowledge by the complainant of the suit, a court of equity will grant relief against the judgment, where the rights of innocent purchasers have not intervened.</p> <p>2. Return—right to contradict return of service. Where rights of third persons have been acquired in good faith, the return of an officer showing the service of summons can not be contradicted; but as against the judgment creditor, and parties acquiring rights under him with notice of the facts, the return is not conclusive, but may be contradicted.</p>

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

<p>1. Summons—form, of, in suits before justices of the peace. The statute does not require a different form of summons, in a suit brought before a justice of the peace to recover penal damages, than in ordinary actions.</p> <p>8. Appeals—¿from justices, must be tried on the evidence. On the trial of an appeal from a justice of the peace, the rights of the 'parties are to be determined on the proofs, unless it appears, from the evidence, that the justice had no jurisdiction of the subject matter.</p> <p>3. Negligence—liability of railroad company for stoch hilled from want of fence. The mere fact that stock is running at large, in violation of statute, does not relieve railroad companies from liability for an injury to them, resulting from a neglect to fence their road, and no other negligence need be shown.</p>

<p>1. Constitution—construed as to meaning of county hoard. The words “ county board,” as used in the State constitution, and required to fix the compensation of county officers, mean the body of persons to whom is entrusted the transaction of county business, and the term embraces as well county courts, as boards of supervisors and courts of county commissioners.</p> <p>2. Officer—sheriff and collector hut one officer. The office of sheriff and collector, in counties not under township organization, are not separate and distinct offices, and, therefore, when the county court fixes the compensation of the sheriff, he can not receive more than such sum by virtue of his also being collector.</p> <p>3. Same—:perquisite above commission. If a sheriff receives money as commissions on tax money deposited by him in a bank, it is a perquisite derived from his office, and he can not retain the same in addition to the compensation allowed him by the county board.</p> <p>4. Official bonds—as sheriff and collector—upon which liable. Where a sheriff, in a county not under township organization, becomes liable for money received by him from a bank as compensation for deposits he made therein of moneys which came to his hands as sheriff, it is proper to sue upon his bond given as sheriff—not upon the additional bond the sheriff is required to give as collector of taxes.</p> <p>5. Judgment—date, when of no importance. Where a writ of inquiry on a judgment nil dicit is, by consent, executed by the judge, in vacation, without a jury, it is of no importance that the finding and judgment bear no date, where there are no intervening liens claimed.</p>

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

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

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

Tazewell B. Tanner, Judge, presiding. The record shows that, at the March term, 1872, a decree in chancery was rendered in the circuit court, in a proceeding to foreclose a mortgage, wherein Fry was complainant and O’Brian and his wife were defendants, by which decree it was “adjudged and decreed that defendants pay, in thirty days, $556.33, and that, in case the defendants should make default in the payment of the said money, then, and in that event, the said defendants are…

<p>1. Heirs—when personal judgment against, is erroneous. Where heirs at law are sued for a debt of their ancestor, who have not sold or aliened any part of the land cast upon them by descent, or received any rents and profits therefrom, or anything from the personal estate, it is erroneous to render a personal judgment against them. No other judgment can be rendered in such a case than one to be satisfied out of the real estate which descended to them.</p> <p>2. Same—extent of liability for ancestor's debts. The liability of heirs for their ancestor’s debts is only to the extent of what descends to them from such ancestor.</p> <p>3. Witness —party in suit against heirs. In a suit against the administrator and heirs of a deceased person, for a debt owing by the deceased, or a liability incurred by him in his lifetime, the plaintiff is not a competent witness to testify, except as to facts occurring after the death of such deceased.</p>

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

<p>1. Appeal—lies from county to circuit court in bastardy case. Under the Revised Statutes of 1874, an appeal lies from the county to the circuit court in bastardy cases, and it is proper to try the same de novo.</p> <p>2. Same—from, county to circuit court. An appeal, for the purpose of a trial de novo, lies from the county to the circuit court in all cases where no appeal or writ of error is allowed to this court.</p> <p>3. Bastardy—degree of proof required. A prosecution for bastardy being merely a civil proceeding, the defendant may be found guilty on a preponderance of evidence, and it is no error to so instruct the jury.</p>

<p>1. Appeal—from county to circuit court. The words, “as in other cases,” in the statute of 1873 in relation to appeals from the county to the circuit court, on applications by administrators to sell real estate to pay claims, mean that appeals shall be taken in the usual manner of taking in other cases.</p> <p>2. Same—bond must be filed in time. In order to perfect an appeal from an order of the county court for the sale of land by an administrator, to the circuit court, the appeal bond must be filed within twenty days, as in other cases.</p>

<p>* 1. Highways—notice of hewing and posting of petition jurisdictional. In counties under township organization, unless copies of the petition for laying out a highway are posted as required hy the statute, and notice is given by the commissioners of highways to hear reasons for or against, they will have no jurisdiction to act. Such notices are jurisdictional, and unless proved by affidavit, or other legal evidence, an Order establishing a highway will be enjoined in equity.</p> <p>3. Same —posting may be shown by recital in order. Commissioners of highways may receive any competent evidence of the posting of copies of a petition for a new road, and if their order establishing the road shows that such evidence was received, showing the fact of posting, it will be sufficient evidence of their jurisdiction to act.</p> <p>3. Same—appeal. If commissioners of highwaj’-s, in making an order to lay out a highway, have no jurisdiction, their proceedings will be void, and there will be nothing to appeal from. An appeal is a recognition of jurisdiction.</p> <p>4. Chancery jurisdiction—enjoining opening of road. Where an order of commissioners of highways establishing a highway is void for want of jurisdiction, a court of equity will entertain a bill to enjoin the opening of the road, although no order is made to open the same.</p>

<p>Fraudulent conveyance—right of grantor's surety to impeach. A surety of a party at the time he makes a conveyance of land, who is after-wards compelled to pay the grantor’s debt, is a creditor, within the meaning - of the statute, and has the right to impeach the deed as fraudulent, by bill in chancery. I</p>

<p>1. Bill of review—does not lie on finding of court. A bill of review can not be sustained on the ground that the court decided wrong on a question of fact, nor for wrong inferences of the court on matters of evidence, nor on the ground that the decree which is attacked was not warranted by the evidence.</p> <p>2. Fraud—in procuring decree. Where defendants are induced to enter their appearance in a suit in chancery to save the cost of service, and have-ample opportunity to contest the-equities claimed, and nothing is done to prevent their defending, the decree can not be impeached for fraud.</p>

<p>1. Trover—when it lies. An officer acquires no such interest in property, until lie has seized it under execution, as gives him the right to recover the value in an action of trover, or the properly itself in replevin. Until after a levy, he can maintain no action in respect to personal property of the defendant in execution.</p> <p>3. Same—when demand is necessary. Where personal property is taken on execution hy a constable, trover can not be maintained against the plaintiff in the execution when sued with the officer, without proof of a demand and refusal to surrender the property.</p> <p>3. Officer—e ights of, under execution. If an officer reduces personal property to possession hy a levjr under an execution, and any one dispossesses him, he may recapture it, or recover the value of his special interest in it, in an action of trover.</p>

<p>Wbit of Ebbob to the Circuit Court of Jasper county; the Hon. James C. Allen, Judge, presiding.</p>

<p>1. Railroads—liability for injury from neglect to keep fence in repair. Where stock is killed or injured by reason of the insufficiency of the fences of a railway company along its track, and the fences have been out of repair so long that the company must have known it, and the owner of the stock is guilty of no negligence, the company will'be liable for the injury.</p> <p>2. Pleading—declaration—surplusage. Where the value of stock killed by a railroad company, through negligence, is laid, under a videlicet, at $200, an averment that the cattle were of the value of §19.50 each, may be regarded as surplusage.</p> <p>3. Instruction—assessed value in, construed. Where an instruction informed the jury that, in case of a finding for the plaintiff, in an action against a railway company for killing stock, the plaintiff’s damages would be the “ assessed value” of the cattle, and there was no proof of any assessment of their value, it was held, that these words must have been used and understood as the value proved or estimated by the jury, from the evidence before them.</p> <p>4. Negligence—weeds and grass on right of way. It is negligence on the part of a railway company to permit grass or weeds to grow on its grounds so as to obstruct the view of stock by the engine-driver.</p>

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

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action on the case, by the appellee against the appellant. A trial was had, resulting in a verdict and judgment of $465 for the plaintiff.

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

<p>1. School directors—liability for exceeding their powers. The duties of school directors are derived exclusively from the statute, and are specifically defined, and if they exercise powers and functions not conferred upon them, the statute makes them responsible for all losses that may ensue.</p> <p>2. Same—liability for money borrowed. School directors may borrow money for certain enumerated purposes, on terms prescribed by the statute, and when obtained, it is their duty to pay it to their treasurer, who is the only proper custodian. Should they place it in the hands of any one else, it is at their own risk.</p> <p>3. Same—power to issue and sell bonds. No authority is given school directors to issue bonds and place them upon the market for what they may bring, or for anything less than their par value. If they do, they are liable, under section 77 of the School Law, for any loss the school fund may sustain.</p>

<p>1. Limitation—new promise. Where a debtor, within five years before suit brought, recognizes the debt as due, and expressly promises to pay a certain part of it by a day named, and thereby impliedly promises to pay the balance at some future time, this will be sufficient to prevent the bar of the Statute of Limitations.</p> <p>2. Receipt—may be explained or contradicted. Parol or other extraneous evidence is admissible to explain, vary or even contradict a receipt for money, and it is not necessary to deny the execution of the receipt, under oath, before the party can so contradict it.</p> <p>3. Interest—on liquidated amount. Where the sum due from one party to another is fixed, certain and agreed upon, interest at six per cent is recoverable thereon after it is due.</p>

<p>Chancery jurisdiction—remedy at law. If the assessor and treasurer receives fees and emoluments in excess of his compensation as fixed by the county board, and refuses or neglects to render any account thereof, a court of equity will have no jurisdiction to compel an account, there being a complete remedy at law, by action against him personally or upon his official bond, and an admission of the facts charged, by demurrer, does not change the rule.</p>

<p>1. County court—power to bind county exists by statute only. County courts can only exercise such powers, when sitting for the dispatch of county business, as have been conferred on them by express law, or are necessary to be exercised in order to carry into effect such granted powers.</p> <p>2. Municipal debts—means provided excludes all others. It is a familiar principle, that where a statute points out a particular course to be pursued to effect a particular purpose, no other course can lawfully be pursued.</p> <p>3. Thus, where an act to enable counties to liquidate their debts, provides that the county courts, or boards of supervisors, may levy a special county tax for that purpose, they can only be discharged by the levy of such tax, and the county board has no authority to take up its outstanding orders and give bonds in lieu thereof, bearing interest. Interest-bearing obligations can not be issued in the absence of statutory authority.</p>

<p>Writ on Eebob to the Circuit Court of Richland county; the Hon. James 0. Allen, Judge, presiding.</p>

<p>Witness—impeachment 6y contradicting his statements. If a witness, whether defendant in a criminal proceeding or not, has sworn wilfully and knowingly false on any material matter, his whole evidence may be rejected, so far as it is not corroborated. But the mere fact that he is contradicted as to some material matter, is not enough to warrant the rejection of his testimony, unless the jury may believe he has sworn falsely and knew it to be false.</p>

Writ of Error to the Circuit Court of Jersey county; the Hon. Cyrus Epler, Judge, presiding. This was a suit originally brought before a justice of the peace, by Franklin L. Becht against Bickard Kelly, who was a constable, to recover three times the value of a heifer and calf of the plaintiff, which the defendant levied upon and sold under execution, and taken, by appeal, to the circuit court. A trial was had, resulting in a judgment for the defendant.

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

James C. Alleh, Judge, presiding. This was an action of trover against Forth, for the alleged conversion to his own use of the undivided half of a certain portable saw mill, alleged to have been, at the time of the conversion, the property of George Pursley. The proof for plaintiff tends to show the following: The mill was bought in Hay, 1870, by Wm. Pursley and Wm. Jacks, and, in the spring of 1871, Wm. Pursley sold his interest to Wm. Jacks.

Writ oe Error to the Circuit Court of Jefferson countj; the Hon. Tazewell 13. Tanner, Judge, presiding. Judgments in attachment were rendered in favor of the several defendants, at the February term, 1875, of the Jefferson county circuit court, against James Givens. All the writs of attachment were levied upon the same property, and were all returnable at the February term, 1875, except those in favor of the Merchants’ FT ational Bank.

<p>Forcible entry and detainer—what possession necessary to enable plaintiff to maintain. In an action of forcible entry and detainer for the possession of a tract of timber land, the plaintiff proved that he had in cultivation two tracts of land, one adjoining the timber land and the other about a mile and a half from it; that fire wood for the use of both farms was cut from the timber land; that he had a deed for the timber land, and had paid taxes and cut timber on the land in dispute for twenty years: Held, this was sufficient evidence of possession to sustain an action of forcible entry and detainer.</p>

<p>1. License—to keep dram shop subject to ordinances of town granting. Although there may be no condition in a license to keep a dram shop granted by a town, nor any reference to any ordinances of the town, yet such license will be held to have been granted subject to such ordinances of the town as had a legal existence at the time it was granted, and such as were within the competency of the town authorities to enact.</p> <p>2. Same—power to revoke does not authorize depriving licensee of use of his property by force. Where an ordinance of a town provides that in certain cases the town council may revoke license granted hy them to keep dram shops, and it shall be the duty of the town constable to immediately close up the grocery of the licensee, the town authorities have no power to oust the keeper of the dram shop from his premises hy force, take and hold possession of the same, and thus deprive him of the use of his property.</p> <p>3. Dram shops—can not be closed by force. Any ordinance or law which authorizes the authorities of a town to close a saloon or grocery by force, without having it first judicially declared a nuisance, and ordered to he abated, is unconstitutional.</p>

Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding. This was an action brought by appellee against appellant, upon a policy of fire insurance, to recover for property destroyed by fire and covered by the policy sued on.

<p>1. Churches—1low contracts by may be executed. Where there is no evidence before the court as to the manner in which a church contracts debts and executes contracts, and it appears that there are trustees, it will be presumed, in the absence of proof, that the trustees are empowered to make contracts and incur indebtedness on account of the church property.</p> <p>2. Chxjroh trustees—must actas a body, to bind the church. Where the trustees of a church are authorized to execute contracts for a church, they should act as a body, or delegate the power to one of their number, or ratify and approve the act of one of their number acting for- them, and unless they do so, the church, as a corporation, will not be bound. The unauthorized act of one of the trustees can not bind the church as a corporation.</p> <p>3. Where the officiating priest of a church, who is & member and chairman of the board of trustees, employs a person to work for the church, without authority from the other trustees, and the act is not ratified by them, the church is not liable.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a proceeding by information, in the nature of a quo warrwnto, for the purpose of determining the right of appellant to maintain a toll-gate on Dyke avenue, in the city of East St. Louis.

<p>1. Mississippi biveb—not a, nmigahle stream according to common law definition. Whilst the Mississippi river is a navigable stream in fact, and has been so declared and treated for years, yet it is not such a stream as is by the common law termed navigable.</p> <p>2. Same—rights of riparian owner. If. the Mississippi river forms the boundary of land granted by the United States, the grantee becomes a riparian owner, and ■ his grant extends to the center of the thread of the current.</p> <p>3. Same—when considered the houndary line of land. A meandered line run by the United States surveyor between the Mississippi river and a fractional quarter section of land, merely for the purpose of ascertaining the quantity of land in the fraction, can not be regarded as a boundary line, where no monuments are established, and where such line does not appear upon the plats in the United States land office, but in such case the river will be considered as the boundary line.</p>

<p>1. Trespass quark clausum fregit—prior possession not always evidence of prior right. In an action of trespass guare clausum, fregit, prior possession is not always proof of prior right; that depends upon the nature of the possession. Temporary occupancy without claim of right does not tend to show prior right.</p> <p>2. Where, in an action of trespass guare cla/usum fregit, both parties claim prior possession, an instruction that a prior possession by the defendant will defeat a recovery by the plaintiff should not be given, unless the nature of the possession required in such case is stated.</p> <p>3. Where a plaintiff has recovered in an action of trespass guarre clausum fregit, such recovery is res adjudicata, as between the parties, that plaintiff’s possession before the trespass in that suit complained of was peaceable, and prior to defendant’s, and of such a character as to entitle the plaintiff to retake it, if it could be done peaceably.</p> <p>4. Same—second suit after ouster and re-entry. Where a plaintiff recov. ered in an action of trespass guare clausum fregit, against a railroad company, for entering upon land in his possession, and building a track thereon, and the defendant paid the judgment, and the plaintiff afterwards peaceably retook possession of the same premises, and the defendant again entered upon it, and rebuilt its track, it was /¿eMf'that the peaceable retaking possession by the plaintiff was lawful, and that he was entitled to recover in another action of trespass for the subsequent entry by the defendant.</p> <p>5. Same—suit after re-entry and second ouster, and whilst wrongdoer is in possession. In an action brought- after ouster and before re-entry, the plaintiff can only recover for the ouster. Nor can he bring a second action for damages for the continuance of the wrongful possession by the wrongdoer, until he shall have made a re-entry; but, having re-entered, he has a right of action for the past intervening injury, which can not be taken away by a subsequent forcible ouster, and he may sue upon that right of action even after the second ouster, and when the wrongdoer is in possession.</p>

<p>1. Criminal law—solicitation to commit wime—when indictable. Solicitations to commit crime are indictable, where their object is to provoke a breach of the public peace, or to interfere with public justice, or where perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer is sought. But if the offense be not consummated, and if it be not of such a character that its solicitation lends to a breach of the peace, or the corruption of the body politic, the mere solicitation is not, of itself, indictable.</p> <p>2. Same—attempt to commit incest. A mere effort, by persuasion, to produce a condition of mind essential to the commission of the crime of incest, without any step taken towards the commission of the offense, is not an attempt to commit the crime, within the meaning of the section of the Criminal Code providing for the punishment of whomsoever attémpts to commit an offense prohibited by law, and does any act towards it, but fails or is intercepted or prevented in its execution.</p>

<p>1. Bastardy—objections to insufficiency of proof on formal questions, must be made in lower court. Where a complaint is made in a county in this State, charging that a person of such county is the father of a bastard child, and the return on the warrant shows that the defendant was found in that county, and the proof on the questions as to when the child was begotten or born, or where the defendant was found, is not fully called out before the jury, and no question is raised in the circuit court as to the sufficiency of the proof on these points, the objection will be too late when raised for the first time in the Supreme Court.</p> <p>3. Same—appeal lies to circuit court—-trial de novo. The prosecutrix in a bastardy case can take an appeal from an order of the county court dismissing the proceedings, to the circuit court, and upon such appeal, the case will be tried de novo in the circuit court.</p> <p>3. Same—proceedings do not abate on death of child. The proceedings ' in a bastardy case are >al abated by the death of the child, but the court should, where the evidence shows that the child was born alive, and was living when the proceeding was instituted, and died before the trial of the cause, make an order, in case the defendant is found guilty, for the payment by him of so much of the amount fixed by statute as shall have accrued between the birth and death of the child.</p>

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

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

Amos Watts, Judge, presiding. This was an action for slander, brought by the appellee against the appellant. The declaration contained two counts.

<p>1. Corporations—when estopped to deny their own power. Corporations will not be permitted, to exercise powers that might be hurtful to the public interests, beyond those expressly conferred by their charters; but when a corporation has exercised powers germane and incidental to those conferred, and in furtherance of the general objects of the corporation, although the subject of the contract may not be within an)r definite power given, it will be estopped from denying it had authority to make such contract.</p> <p>2. Same—power to mortgage incident to power to purchase and hold real estate. Where the law under which a corporation is organized authorizes it to contract and he contracted with, and to purchase, hold and sell property, tlie power to mortgage its real estate, to secure money for the purposes of its organization, will he regarded as a necessary incident to the power to acquire and hold it.</p> <p>3. Mistake—in deed of corporation, will he corrected, in equity. Where the officers of a corporation, duly authorized to execute a deed of trust upon its property, undertake to do so, hut execute it in their name for the corporation, instead of in the name of the corporation, equity has power to and will reform, the deed, and make it conform to the agreement of the parties.</p>

<p>1. Town ordinance—action will lie on providing for payment of da/rnag6 construction of railroad. Where an ordinance of a town authorizing a railroad company to build its road on a street of the town, provides that the company shall be bound to pay all damages that may accrue to property owners on such street by reason of the construction of said railroad, an action will lie on the ordinance, against the company, in favor of any property owner whose property is injured by the Construction of the road, either by depreciation in value or loss of business sustained during the building of the road and after its construction.</p> <p>2. Same—rights of pan-ties measm-ed by, in a suit on. In an action against a railroad company upon an ordinance of a town permitting it to lay its track on a street of the town, and providing for the payment of damages by the company to property owners, the parties will be governed and their rights measured by the ordinance, without reference to the constitutional provision in regard to compensation for property taken or damaged for corporate purposes, or to the common law on the subject, as announced in Moses v. P., Ft. W. and O. B. B. Co. 21 111. 516, and Murphy v. Chicago, 29 111. 279.</p> <p>3. Measure of damages—to property by construction of a railroad. In a suit under a town ordinance, providing for the payment of damages to property owners occasioned by constructing a railroad track, the difference in the value of the property caused by the construction of the road is the measure of damages, and this may be shown by a comparison of the sales of other property similarly situated before and after the construction of the road, or by the difference in its rental value, if held for the purpose of renting; but if not held for that purpose, then the difference in rental value would not be a criterion.</p> <p>4. Evidence—as to damage done to property by construction of a railroad. In a suit against a railroad upon an ordinance whereby it is bound to pay all damages to property owners caused by the construction of its road, where there have been no sales of property of a character similar to that claimed to be injured, either before or after the construction of the road, from which the depreciation in value can be ascertained, it is proper to resort to evidence of the noise and jarring of the earth, and smoke and dust caused by passing trains, rendering the liouse, if a dwelling, uncomfortable, and injuring the furniture and walls of the house, as an aid to the jury in estimating the depreciation in value of the property.</p> <p>5. Grants—all grants by the public must be construed liberally in its favor. The grant in a charter to a railroad company to run its road through a town can not, by any reasonable or fair intendment, operate as a grant of the use of the streets, or either of them, to the company.</p>

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

<p>Appeal—-from judgment of county court, for taxes. An appeal from the judgment of the county court for delinquent taxes, lies either to the circuit or the Supreme Court, as the appellant may elect.</p>

<p>1. Parent and child—parent not bound to pay for service of child remaining ffjt home, without express contract. Where a child remains with its parent after majority, and in the same apparent situation as when a minor, in the absence of a contract, no recovery can be had for services rendered,</p> <p>3. Contract—when implied, to pay for services of child remaining with family after majority. But where a minor of eleven years of age is taken into the family of his uncle, and remains there until he is of age, receiving his board, clothing and medical attendance from the uncle, and after he becomes of age, continues to reside with his uncle, but furnishes his own clothes and pays his own medical bills, these facts are sufficient to establish an implied contract on the part of the uncle to pay him what his services are reasonably worth.</p>

<p>1. Practice—judgment erroneous as to all defendants if a part are not served. It is error to render judgment against all the defendants, where it appears that no service has been had upon one; and if judgment is so rendered, it will be reversed as to all, as well those served as the one not served.</p> <p>2. Service—by special deputy. A return on a summons withtiiesheriff’s name and fthe name of a special deputy signed to it, if sworn to by the special deputy, is sufficient.</p>

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

Writ of Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. This was a bill in chancery, brought by Lizzie E. Ladew, the wife of A. P. Ladew, seeking to set aside a mortgage given by her and her husband upon the St. Nicholas Hotel, in Bloomington, to Wm. L. Paine, to secure the payment of $518.55 and interest, mentioned in a promissory note dated October 3, 1870, and payable May 1, 1871.

<p>Writ of Error to the Circuit Court of Jefferson county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

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

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

<p>Taxation—must be equal, and not imposed upon a part for the benefit of the whole. A county treasurer, in answer to an application for a mandamus to compel him to pay over to the treasurer of a school district in his county certain taxes levied by the school directors on the property of a railroad company, which he had collected, set up that the township in which the school district was situated subscribed a certain sum to aid in the construction of the said railroad, and that, by the provision of the act of the General Assembly of April 16,1869, entitled “ An act to fund and provide for paying the railroad debts of counties, townships, cities and towns,” he was required to pay into the State treasury all the taxes collected by him in the town in w'hich the school district was situated, for any purpose whatever, on the assessments of railroads, etc., and that said town had issued bonds to the railroad company for the amount of its subscription, and that the same, with a considerable amount of accruing interest, remained unpaid: R'eld, that, as it did not appear that the town and school district were territorially the same, the answer was insufficient; that to allow such defense would be, in effect, to tax a part for the benefit of the whole, which is not admissible under the present constitution.</p>

<p>Writ of Error to the Alton City Court; the Hon. Hicnry S. Baker, Judge, presiding.</p>

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

<p>1. Specific performance—proof must he clear. Applications for a specific performance of a contract are addressed to the sound legal discretion of the court. It is not a matter of course that it will be decreed because a legal contract is shown to exist, and the proof on which the right is based must be clear.</p> <p>2. Chancery—disposition of oross-hill for partition, when original hill for specific performance and partition is dismissed. Where a complainant files a bill, alleging a partnership, by verbal contract, between himself and the ancestor of the defendants, in real estate, the legal title to a portion of which is in himself, to another portion in the defendants, and of the balance in the complainant and defendants as tenants in common, and asks for a specific performance of the contract and partition of all the land, and the defendants deny the partnership, and file a cross-hill for that portion of the land the title to which is in common, it is proper, in the absence of clear and satisfactory proof to sustain the allegation of partnership, to dismiss the original bill, but the cross-bill should be retained, and partition decreed according to the legal title of the parties.</p>

Cybus Epleb, Judge, presiding. The principal facts in this case are not controverted, and may be briefly stated: On the 8th day of November, 1872, an execution was sued out upon a judgment which Lewis W. Moore, late sheriff of Madison county, who sued for the. use of Robert Hoxsey, bad obtained against Henry C. Massey and others, directed to the sheriff of Jersey county to be executed.

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

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

<p>1. Corporations—bound by implied, contracts. Corporations can be bound by contracts made by their agents, though not under seal, and also on implied contracts, to be deduced, by inference, from corporate acts, without either a vole or deed in writing.</p> <p>2. Where attorneys, at the request of a town council, addressed a meeting of the citizens, and explained the terms upon which the holders of bonds of the town proposed to cancel them, which proposition was accepted by the meeting, and the attorneys directed to prepare an ordinance for the purpose of consummating the settlement, which they did, and the town council afterwards adopted the ordinance, and the bonds were taken up in pursuance thereof, and the whole matter adjusted with the assistance of the attorneys, it was held, they were entitled to recover pay from the town for their services.</p>

<p>1. Distribution to heirs—as to personal property. The personal estate of a person dying intestate, whilst it descends to and is to he distributed amongst his heirs, after the payment of debts, must pass through due administration, under the direction of the proper court.</p> <p>3. Parties—heir can not sue on note payable to his ancestor. The heirs of a person dying intestate can not maintain a suit, in their own name, upon a promissory note payable to him.</p>

<p>Error in admitting, not cause for reversal where the other evidence is sufficient. Although the court may err in admitting evidence on the hearing of a petition for partition, yet if there is enough evidence, aside from that improperly admitted, to sustain the decree rendered, it will not he reversed.</p>

<p>1. Vendee—bound by valid agreement of his vendor as to use of land. Where a person purchases real estate with full notice of a valid agreement between his vendor and the original owner, concerning the manner in which the property is to be occupied, he will be bound to abide by the contract under which the land was conveyed.</p> <p>2. Same—equity will restrain violation of terms on which land is conveyed and to be used. Where the owner of land lying on both sides of a river, across which he is operating a ferry, conveys to another a portion of the land, but, for the purpose of protecting his ferry from opposition, provides in the deed that neither the purchaser, nor his heirs or assigns, shall establish or authorize the establishment of a common ferry-boat landing on the land conveyed, without permission from the grantor, such provision is obligatory on the assignee of such grantee, and a court of equity will, at the suit of a devisee of the original owner, enjoin the establishment of a ferry landing on such land.</p> <p>3. Special legislation—authorizing establishment of ferry at a particular' place. An act, the title of which is “ An act to authorize the establishment of a ferry across the Illinois river,” and which is limited in its application to one ferry, and that one located at a definite place, is a special act, and is, therefore, unconstitutional.</p>

Writ or Error to the Circuit Court of Jefferson county; the Hon. James M. Pollock, Judge, presiding. This was a bill, brought by Fry, to foreclose a mortgage given by plaintiffs in error to secure the payment of notes given by Henry O’Brian to Fry. The answer set up a failure, in whole or in part, of the consideration for which the notes were given, but does not deny the making of the notes and mortgage.

<p>"Writ oe Error to the Circuit Court of "White county; the Hon. Tazewell B. Tanner, Judge, presiding.</p>

<p>1. Practice—rendering final judgment with plea unanswered. Although it is irregular to proceed to final judgment against a defendant while any one of the pleas remains unanswered, yet, by going to trial in such a case without demanding to have the pleas answered, he waives the objection, and can not assign the want of replications as error in the Supreme Court.* </p> <p>2. Judgment—against a portion of several defendants. A finding by the court that one of several defendants has been adjudged a bankrupt, and rendering judgment against the other defendants, and not against him, is virtually a judgment in his favor.</p> <p>3. Practice in Supreme Court—plaintiff can not assign error which does not affect him. A plaintiff in error can not assign an error committed against his co-defendant in the court below, when his rights are not affected thereby.</p> <p>4. Evidence—record of judgment. It is not necessary to prove that the record book of a court is such record, when offered in evidence in such court. The court will take judicial notice of its own record books, and they prove themselves when offered in evidence in such court.</p> <p>5. Levy—on real estate not a satisfaction. A levy upon real estate is not, like a levy upon personal property, a prima facie satisfaction of the execution.</p> <p>6. Record—of court can not be changed at subsequent term. A court has no power to-change its judgment in any material respect at a ■ subsequent term.</p> <p>7. Sale on execution—-former levy not ground for setting aside. The fact that a levy on real estate was made under an execution issued on the original judgment, and not disposed of, is not a sufficient reason for setting aside a sale under a subsequent execution issued upon a revival of the judgment by scire facias.</p>

<p>1. Claims against estate — allegation and proof must correspond. Where a claim filed against an estate is for money due under an alleged specific contract between the claimant and the deceased, proof of the admissions of the deceased of obligations or undertakings, on liis part, to the claimant, other and different from the claim filed, will not sustain the claim, and it should not be allowed on such proof.</p> <p>Z. Same—should he closely scrutinized. A claim filed hy a grandson against his grandfather’s estate, for a large amount, on account of an alleged agreement by the grandfather to pay him for changing his residence, should he closely scrutinized hy the jury passing upon the same, and all the facts and circumstances should be carefully weighed and considered.</p>

<p>Sale under decree—upon what evidence set aside, when made sixteen years after decree. A decree of foreclosure was rendered in 1857, and three payments were made thereon, which were not disputed, and no sale was made until 1873, when a sale was made, and, on a report thereof by the master, the defendant moved to set aside the sale, on the ground that the decree had been paid. Upon a reference to the master, the defendant testified that the amount of the decree had been paid in" full, and produced an account of goods which he had furnished complainant, and which were to be applied, as he said, on the decree, and which, if correct, paid the decree in full; he also proved a conversation between himself and complainant, in which it was understood that if the defendant, in the payments he was making, should overpay the amount of the decree, the complainant, upon a settlement, should refund. The defendant did not testify that he had not received the goods named in defendant’s account, but simply that he did not remember anything about the account, and that it was never presented to him: Held, that in view of the fact that sixteen years had elapsed between the recording of the decree and the sale, the evidence was sufficient to justify the setting the sale aside on the ground that the decree had been satisfied.</p>

<p>1. Garnishee—answer considered as true until disproved. The answer of a garnishee, until it is contradicted or disproved, must he considered as true. If judgment is demanded upon the answer, it must clearly appear therefrom that the garnishee is chargeable, or he will be discharged.</p> <p>2. Same—not liable if certificate of indebtedness has been given to debtor and sold by him. Where a railroad company issues to its employees certificates of indebtedness, and is afterwards garnisheed on account of such indebtedness, it will not be liable if the payees of the certificates have sold the same before the service of garnishee process, notwithstanding such certificates are .not negotiable in law.</p>

<p>1. Db pacto officer—Ms acts -worthy of credit. An officer de facto is one who has the reputation of being the officer he assumes to be in the exercise of the functions of the office, and yet is not a good officer in point of law. The official acts of such an officer are always regarded as worthy of full faith and credit.</p> <p>3. Service—amending return at subsequent term. An amendment to a return upon a summons made at a subsequent term, upon notice to the adverse party, by the officer who made the service in the first instance, in accordance with the facts from his personal recollection, by leave of court, is rightfully and properly made, and if the service, as amended, shows the court had jurisdiction of the person of the defendant, it could proceed to judgment.</p> <p>3. Equitable title—will defeat naked legal title on till for partition. Where a mortgage was foreclosed, and the decree provided that, on default of payment of the amount found due, the equity of redemption should be barred, and, defiiult being made, the property was sold as directed by the decree, and no deed made, but the fact reported to the court, and a decree entered that the title to the property be vested in the purchaser, it was held, that such an equitable estate vested in the purchaser as to preclude the heirs of the mortgagor from asserting title by bill in equity for a partition of the land.</p> <p>4. Purchasers—under decree, protected though decree is afterwards reversed. Purchasers under a decree of a court of equity, whilst it is in full force, and before any writ of error has been prosecuted, and without any notice whatever of claims and equities of the parties thereto, will be protected, notwithstanding the decree is afterwards reversed.</p>

<p>Trust—promise to pay money when land is sold. Where land is conveyed by a client to his attorney, for fees in a suit then pending, and afterwards other attorneys are empl03red, and assist in the management of the case, even if the one to whom the land is conveyed employs them, and tells them he has received a conveyance of land for_ fees, and that he will pay their fees when he sells the land, such facts would not make him a trustee of the land for the joint benefit of all, or entitle the others to a partition of the land, or any other relief in a court of equity, whatever might he their rights in a suit at law.</p>

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

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

<p>1. Forcible detainer—notice in writing—whether original or a copy. Where four notices, in writing, of a demand of possession of land are prepared at the same time, all alike except that three of them are addressed to three different occupants of the land, respectively, and the fourth one is re-by the party preparing them, the one retained is not a copy, but all are original, duplicate papers, and the name of the person to whom they are addressed is no part of the notice, and, if these are delivered to the several parties to whom addressed, respectively, the one retained is properly admissible in evidence as a written demand to support an action of forcible detainer.</p> <p>3. Return upon execution — when land is sold. It is no part of the return of the sheriff to show what land is sold on the execution, but simply to show satisfaction, part satisfaction .or failure to make satisfaction. Where land is sold oti execution, the sale, the land sold and the name of the purchaser may be shown by the certificate of sale or by recitals in the sheriff’s deed.</p> <p>3. Levy upon land—notice to the debtor, and demanding payment or property. A portion of a farm upon which a judgment debtor resided was levied upon and sold under execution. It was contended that under the 10th section of the chapter on judgments and executions, the sale was void because the levy and sale were made by the sheriff without notifying the debtor that he had . an execution against him, and without demanding the payment of the execution or demanding property to satisfy the same. It did not appear that the debtor, at the time of the levy, had any land in the county subject to ■levy, which was not a part of the farm on which he then lived: Held, a notice and demand for such property would have done him no good, and the statute does not require it.</p> <p>4. But if it were otherwise, the sale could not be held void for that cause.</p> <p>5. Same—remedy under the statute. To render the rights of an execution debtor effective under that statute, application to set aside the levy should he made in apt time, and, if not impracticable, it must he done before the rights of third parties intervene.</p> <p>6. Practice—objection for want of proof of signature must be specifically made. If a party intends to rely upon the fact that the signature to an indorsement or assignment of a certificate of sale is not proved, as an objection, to its introduction in evidence, he must call the attention of the court specifically to that point, or it will be presumed the point was waived.</p> <p>7. Sheriff’s deed — recitals. The recital, in a sheriff’s deed, of a certificate of sale, and the assignment thereof, is evidence of their existence, and, after the execution of the deed, such certificate and assignments thereof cease to be essential muniments of title.</p> <p>8. Homestead—embraces only the tract or ground actually occupied as a residence. Courts will take notice of the government surveys of land, and also of blocks and lots in towns and cities, and, where a debtor has a dwelling upon any forty-acre tract, or on any town or city lot, which, with the buildings thereon, clearly exceeds in value one thousand dollars, the law regards such forty acres or such town or city lot as “the lot of ground by him occupied as a residence,” and his exemption is confined to such tract or lot, and the sheriff" may levy on and sell any adjacent tract or lot without the intervention of a jury.</p>

<p>1. Assault and battery—action of trespass may be maintained, no matter what language may ham provoked it. It is not essential to a recovery, in an action of trespass for assault and battery, that it shall appear the assault was committed without any provocation on the part of the plaintiff, .It is wholly immaterial what language the plaintiff may have used to the defendant, so far as the right of the plaintiff" to maintain an action is concerned.</p> <p>2. Same—if in self-defense, must not exceed, necessary defense. And even if a plaintiff, in an action for assault and battery, provoked the assault, by himself first committing a technical assault, still he can maintain his action if the assault and battery CQmmitted by the defendant goes further than a reasonable self-defense.</p> <p>3. Burden of proof—on defendant, to maintain a plea of son assault demesne. On issue taken upon a replication de injuria• to a plea of son assault demesne, the burden is upon the defendant to prove that the assault was made in necessary self-defense, and that, in making the assault, he used no more force than was necessary to protect himself.</p> <p>4. Instruction—need not repeat the expression ‘ from the evidence” in every clause. It is not necessary that a jury should be told in each sentence of an instruction, that they should “believe from the evidence.” If the first part of the instruction contains this clause, a jury of intelligent men will not be misled if it is omitted in the remaining portion.</p>

James C. Allest, Judge, presiding. On the 21st of April, 1868, William A. Forth sold and conveyed to Mark Hails lot 4, in block 20, in South Xenia, 111., for $3500.

<p>1. Practice—objection to transcript of justice of the peace should specify grounds. Where a general objection is made to the introduction of a transcript from a justice’s docket in evidence in the circuit court, without any specific ground of objection being pointed out, the objection will be treated as going to the form and pertinency of the transcript, only, and it can not be urged for the first time in the Supreme Court that there is no copy of the summons or return in the transcript.</p> <p>2. Execution—alias by justice of the peace before twenty days after judgment. Where an affidavit is filed by a plaintiff, and ah execution issued thereon by a justice of the peace inside of twenty days after the date of the judgment, and the execution is returned inside of the twenty days, the same affidavit will he sufficient to authorize the issuing of an alias execution.</p> <p>3. Evidence—to justify levy upon property. As a general rule, a sheriff or constable has only to produce a fi.fa., regular on its face, to justify his levy upon and seizure of property; but when he levies on property claimed by some one else than the defendant in execution, and he denies the ownership, and the officer claims the sale by the debtor was fraudulent as to creditors, he must go farther, and show the execution was issued on a judgment.</p> <p>4. Fraudulent sale—possession. Where a debtor sells personal property by verbal contract, and retains the possession, such sale is fraudulent per se, as to creditors of the vendor.</p>

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

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

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

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

<p>1. Beal estate'—engine and machinery attached to, become part. A steam engine, machinery and fixtures attached to the soil by a lessee thereof for the purpose of hoisting coal from mines situated thereon, including all boxes and other necessary appliances connected therewith, become a part of the lessee’s estate therein.</p> <p>2. Mechanic’s hen—attaches to leasehold, estate for work on machinery which lessee, under his lease, may remove. Although, by the terms of a lease, the lessee has the privilege of removing all machinery and fixtures placed upon the leased premises, yet an engine and fixtures attached to the soil are a part of the estate itself until severed, and a mechanic or materialman, who, under a contract with the lessee, furnishes such engine and fixtures, and puts it up on the premises, is entitled to a mechanic’s lien against the estate of the lessee on account thereof.</p> <p>3. Leasehold estate—mechanic's lien on, not affected by voluntary surrender to owner of the fee. A voluntary surrender by a lessee of the leased premises to his landlord, before the expiration of his lease, can not affect a mechanic’s lien upon the leasehold estate which attached whilst the lessee ■was the owner; and in such case, if the owner of the fee should neglect to discharge the lien, upon the consummation of a sale under the decree establishing it, he would be compelled to accept another tenant.</p> <p>4. Decebe — against owner of fee who accepts surrender of leasehold estate subject to mechanic’s lien. Where a lessee of land, whose estate only is sought to be subjected to a mechanic’s lien, surrenders "his estate to the owner of the fee, a decree establishing the lien may properly order that, in default of the payment of the amount of the lien by the lessee or the owner to whom he has surrendered, the interest of all the parties therein he sold; such a decree would he construed as applying to the interest of the parties in the leasehold estate, including the improvements for which the lien is established.</p>

<p>1. Proposition—•binding on party malcing, when acted on by other party. A proposition in writing, signed by a party, to pay a sum of money to another upon the performance by the other of certain things, when accepted and acted upon, and the things to be done are performed before the proposition is withdrawn, becomes binding on the party signing it.</p> <p>3. Instruction—whether calculated to mislead. An instruction stated to the jury, that if certain work was of the character contemplated by the parties, the jury should find, etc. It was objected that the word “quality” should have been used instead of “ character,” but the court held that the words were frequently used convertibly, and that in the connection in which the term was used in the instruction, it could not have misled the jury.</p>

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

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

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

<p>Appeal from the County Court of St. Clair county; the Hon. Frederick H. Pieper, Judge, presiding.</p>

This was an action of trover, by Weedman against Owens and Dry bread. The plaintiff, in his declaration, alleged, in substance, that he was lawfully possessed, as of his own property, of 150 hogs, and lost them, and the same came into the possession of defendants, and that they converted them to their own nse.

<p>Additional appeal bond. It is within the discretion of the circuit court, on an appeal from a justice of the peace, to require the party appealing to file an additional appeal bond, and it is not error to dismiss his appeal in case of non-compliance with a rule to that effect.</p>

<p>1. Embezzlement—what constitutes. If money is placed in the hands of a person to be loaned for the owner for a specified time, upon a certain specified character of security, and at a stipulated rate of interest, and the person so intrusted with the money fraudulently converts the same to his own use, he will be guilty of embezzlement, under the Criminal Code.</p> <p>8. But where one places his money in the hands of another, relying upon his honesty or responsibility for its return, with the stipulated interest, then a failure of the party to properly account for the money so received will not subject him to a criminal prosecution for embezzlement.</p> <p>3. Evidence in criminal cases—as to other like offenses. Upon the trial of a party charged with embezzlement, by the fraudulent conversion to his own use of money placed in his hands to be loaned for the owner, it is not competent for the prosecution to prove that the defendant had collected or secured money belonging to- other parties, and on several occasions, which he had fraudulently converted to his own use. The evidence should be confined to the charge sot forth in the indictment.</p>

Olives L. Davis, Judge, presiding. This was an action, brought by Lucy C. Kidwell, against Hugh Clinton. The trial in the circuit court was, by consent, had without the intervention of a jury.

Writ of Error to the County Court of McLean county; the Hon. K. M. Benjamin, Judge, presiding. This was a prosecution for bastardy, against Leander Haines.

Writ of Error to the Circuit Court of DuPage county; the Hon. H. H. Cody, Judge, presiding.

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

<p>1. Retaining fee—only one properly chargeable. It is not usual for an attorney to charge more than one retaining- fee in the same case, and if he charges more than one, he will not be allowed to recover such extra charge in a suit for his services.</p> <p>2. Attorney at law—fees. A charge of fifty dollars by an attorney, for drawing and filing an appeal bond, is exorbitant; and where an attorney-recovered a judgment in a suit on an account for professional services rendered. in which account were three retainers in the same case, and a charge of fifty dollars for preparing and filing an appeal bond, the judgment will be reversed for reason that only oije retainer is allowable, and the charge for the appeal bond was unreasonable.</p> <p>3. Evidence—it is proper for party to explain Ms acts, by showing a misapprehension of facts. It is proper for a defendant, who is shown to have promised to pay the plaintiff’s bill, to testify that, at the time he made such promise, he had not discovered errors in the bill which he afterwards discovered, and the court should permit such testimony to go to the jury.</p>

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

S. M. Moore, Judge, presiding. Francis Johnson and Michael Diversey, when living, were partners in the wholesale and retail liquor business. By the terms of the written articles of co-partnership, the survivor had two years in which to close up the affairs of the firm, after the death of the other partner. Johnson died in 1860, and Diversey at once assumed exclusive control of the business and effects of the concern.

Hath aniel J. Pillsbury, Judge, presiding. This was assumpsit, by appellee, against appellant and her husband, Patrick H. Burchard, on an instrument in writing, of which the following is a copy: j “$403.44 Hamilton, January 1, 1866. “ For value received, we, jointly and severally, promise to pay A. D. Dunbar, or bearer, $403.44, in three equal annual payments, the first payment to become due January 1, 1867, with annual interest on all sums remaining unpaid, and the whole to…

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

Jons' G. Bogers, Judge, presiding. Orrin Miller died intestate in Chicago, on the 8th day of December, 1872. The only estate left by him was an interest of one-third in partnership property and effects of the firm of McDonald Brothers & Miller, the value of which interest was from §1600 to $2000. On the 23d of December, 1872, letters of administration upon his estate were issued to Susan Miller, the appellant, and she qualified as such.

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

<p>Hew trial—newly discovered evidence. Where there is evidence sufficient to sustain the verdict, and a new trial is asked for on the ground of newiv discovered evidence, which is only cumulative, and this court can not see, upon the whole record, that justice has not been done, the judgment below will not be disturbed.</p>

<p>1. Appearance—as waiving defective process. Where a party appears and submits himself to the jurisdiction of the court, it is a matter of no consequence whether the summons is void or not, or even whether there is any process at all.</p> <p>2. Remedy—/or illegal arrest. The remedy of a party who has been unlawfully arrested, and against whom a judgment has been entered upon such arrest, is in an action at law for such unlawful arrest, and not by a bill in a court of equity to enjoin the collection of the judgment.</p> <p>3. Arrest—duress—what constitutes. Where an officer serves a warrant for the arrest of a defendant for violation of a city ordinance, by reading the same, and requests him to appear before the magistrate, and leaves him without taking him into custody, such service does not amount to an arrest; and if the defendant appears before the magistrate and confesses judgment, he can not afterwards enjoin the collection of the judgment on the ground that he confessed the judgment under duress.</p> <p>4. Intoxicating liquors—towns not restricted to the same penalty pro. vided by the general law for sale of. Where a special charter of a town, granted before the adoption of the present constitution, confers power upon tlie corporate authorities to impose fines or penalties for the unauthorized sale of intoxicating liquors, they are not limited or restricted to the same penalties imposed by the general law.</p>

<p>1. Impairing obligation op contract— changing remedy. Remedies which the law affords to enforce contracts constitute no part of the contracts themselves, and any mere change thereof by the legislature that does not amount to a deprivation of all effectual remedy, is in no. just sense impairing the obligation of the contracts.</p> <p>3. Same—redemption from sale—as to prior contracts. Where a contract, under which parties' became entitled to enforce a mechanic’s lien, was made, and proceedings to establish the lien were instituted, hut no decree pronounced before the act of 1869 allowing redemption from sales under such proceedings was in force, and after that act took effect a decree was rendered declaring the lien, and ordering a sale of the property, the decree properly conformed to the provisions of that act, and provided for a redemption from any sale made thereunder.</p>

<p>T. Corporations—residence is where their principal office is. In a suit against a corporation, an affidavit of claim, filed with the declaration, stating the amount due from defendant to plaintiff, and that the principal office of defendant is in the county where the suit is brought, is sufficient to show that the defendant is a resident of that county, within the meaning of the act providing for the filing of such affidavits.</p> <p>3. Practice—affidavit of merits. Where the declaration in an action of assumpsit contains a special count upon a promissory note, and the common counts, and the plaintiff flies with his declaration an affidavit of claim, in accordance with the Practice Act, a plea denying the execution of the note, verified by affidavit, is not a compliance with the statute requiring an affidavit of merits, and it is not error to strike such plea from the flies.</p>

<p>1. Boundary line —parties concluded by, if established by agreement. Where adjoining land owners agree upon a boundary line, and enter into possession and improve the lands according to the line tlms agreed upon, they will be concluded from afterwards disputing that the line agreed upon is the true one, even when the Statute of Limitations has not run.</p> <p>2. Limitation—possession must be adverse, to bar a■ recovery under statute. Where one of two adjoining land owners has possession for over twenty years of a portion of the other’s land, by reason of the division fence not being on the line, such possession will not bar a recovery by the true owner, unless the fence was agreed upon as the boundary line, and the possession taken and held in pursuance of such agreement, or unless the possession is adverse to the title of the true owner.</p> <p>3. Possession—of part of adjoining tract, when adverse. Where the owner of land, in inclosing the same, extends his inclosure and embraces therein a portion of an adjoining tract, and continues in the possession thereof for twenty years, asserting ownership, he can claim the benefit of the Statute of Limitations as to all land embraced within his inclosuie.</p> <p>4. Same—without claim not adverse, so as to bar a, suit for recovery. But where the owners of adjoining tracts of land build a fence to separate them, without knowing where the line is, and without agreeing to the fence as a boundary line, and they afterwards have the lands surveyed without reference to the fence, and ascertain that the fence is not on the line, but that one has a strip of land on his side of the fence belonging to the other, and they both recógnize the line established by the survey, and the one in whose inclosure the other’s land is, makes no claim to the possession of it, the mere fact of its being in his inclosure is not such possession as will bar an action for its recovery by the true owner in twenty years.</p>

<p>Kbaud—-false representations as to boundan-y of land, ground for rescinding contract of sale. Where the vendor, pending negotiations for the sale of a lot with a house on it, points out, to the person proposing to buy, what he states are the boundaries of the lot, showing that the house is situated several feet from the boundary line, on either side, and the purchase is made on the strength of such representation, when, in fact, the boundary line on one side runs through, and cuts off a part of the house, which was known to the vendor when he made the representations, the purchaser will he entitled to have the contract of sale rescinded, or a conveyance made to him investing in him a good title to the ground embraced in the boundaries so pointed out.</p>

<p>1. Descents—illegitimate children. It is a rule of construction that, prima facie, the term “children” means lawful children, and the statute of descents, by which the property of an intestate is made to descend to and among the children and their descendants, has reference to lawful children only, and does not do away with the common law rule, which prevents illegitimate children from inheriting anything.</p> <p>2. Prior to the adoption of the statute of 1872, illegitimate children could inherit from their mother only in case she was unmarried.</p>

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

<p>1. Contribution—as between cosureties. Although a surety may compel contribution from his co-sureties when he has paid a debt for which they are jointly liable, yet such sureties may, by agreement among themselves, so far sever their unity of interest and obligation as to terminate the right of contribution.</p> <p>2. Same—relations of makers of note to each other may be shown by parol evidence. It is competent for a maker of a note, in a suit against another maker for contribution, to prove by parol evidence the relations the parties to the note sustained to each other—whether principal and surety or co-sureties.</p> <p>3. Same—surety not liable to his principal for contribution. Where a party signs a note as security for one who is himself only a surety for the principal maker, he is not liable in a suit for contribution by the one for whom he signed as security.</p>

Henry Booth, Judge, presiding. Jonathan Clark had a contract with H. O. Stone to erect for him a four-story brick building. Clark was to furnish all materials and do all labor to finish the entire building, except, perhaps, the plastering, in consideration of $27,800.

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

<p>1. Juror—competency. In a suit against a liquor dealer for damages occasioned by selling liquor to one in the habit of getting intoxicated, the fact that a juror has a prejudice against persons engaged in the sale of intoxicating liquors, does not disqualify him, if he says he can give the defendant the same kind of a trial as in any other case, and will be governed by the law and evidence.</p> <p>3. But a juror who will not give the same weight to the testimony of one engaged in the sale of intoxicating liquors that lie would to those engaged in other business, is not a competent juror in a suit against a party for selling intoxicating liquors to one in the habit of getting intoxicated.</p> <p>3. Practice—challenging jurors. The fact that the court below erred in overruling a challenge of a juror for cause, will not be sufficient cause for reversal, although the objectionable juror is peremptorily challenged, if the party objecting to him is not compelled to exhaust his peremptory challenges on others.</p> <p>4. Evidence—preponderance sufficient in dril suit for selling liquor. In a suit by a wife for injury to her means of support, occasioned by the sale of intoxicating liquors to her husband, she is not required to make out a ease to the satisfaction of the jury beyond a reasonable doubt, but only by a preponderance of the evidence.</p>

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

<p>Writ of Error to the Superior Court of Cook county; the Hon. Josiah HcEoberts, Judge, presiding.</p>

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

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

E. S. Williams, Judge, presiding. Such proceedings were had in the original case of Darius Clelland against the Frear Stone Manufacturing Company and Lewis Cornell, under the Mechanic’s Lien Law, that a lien was established in favor of petitioner, and the property described was ordered to be sold, should default be made in payment of amount found due.

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

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

Joseph E. G-aby, Judge, presiding. This was an action of assumpsit, upon a promissory note for $3953.

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

<p>1. Evidence—record of a court competent against a party, though no decree pass against him. In an action of ejectment, it is competent for the plaintiff to read in evidence the proceedings in a partition suit in which the defendant was a party, although no decree passed against him, wherein it was ascertained the legal title ivas in one person, and the equitable title in the complainant, and the owner of the legal title required to convejr to the owner of the equitable title.</p> <p>3. Remedial statutes—must be liberally construed. The act in force " April 3, 1873, entitled “An act to remendy the evils consequent upon the destruction of any public records, by fire or otherwise,” is emphatically a remedial act, and must receive a liberal construction, and he made to apply to all cases which, by a fair construction of its terms, it can be made to reach.</p> <p>8. Possession—must be adverse, and for twenty years, to defeat true owner. Possession of land, under claim of title, can not defeat the real owner of the title, unless such possession is adverse, and has so continued for twenty years, and a shorter possession can not prevail against a title the record of Which has been destroyed by fire.</p> <p>4. Judicial notice—of what this court will take. The Supreme Court will take judicial notice of the fact that the United States were the proprietors of land granted by them to the Stale of Illinois, and that such grant was made, and of the location of such land.</p> <p>5. Evidence — to identify a lot described on a plat. Where the title to a tract of land out of which a lot in controversy is carved, is established, the identity of the premises may be shown by other proof, without the introduction of a map or plat of the survey of which the lot forms a part.</p>

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

<p>Municipal bonds—void if issued without authority. Whoever deals iu municipal bonds must be presumed to know what powers the corporation have, under the enabling laws of the State, to issue the securities in which they are making investments. Such authority, if any exists, is to be found *n Puhlic laws equally accessible to all, and if bonds are issued without auy authority in the officer issuing them, they are void, even in the hands of purchasers who have paid full value for them.</p> <p>2. Where a law authorizes the donation of money by a municipal corporation, to aid in the construction of a railroad, and provides for levying a tax to raise the amount to he donated, the officers of the corporation can not adopt any other mode of paying the same, and bonds issued by them for the purpose of paying such indebtedness are void.</p> <p>3. Municipal indebtedness—by whom to be- created. Under an act of the legislature authorizing the “ authorities of any township” to levy and collect a tax with which to meet and liquidate aids voted to a railroad, or to borrow money and issue bonds therefor, for the purpose of paying the amount so voted, the supervisor and clerk of a township have no power to borrow money and issue bonds therefor; that can only he done by a vote of the people of the township whose property is to be affected by the burden imposed.</p> <p>4. Municipal subscriptions—voted prior to constitution of 1870. Donations and subscriptions in aid of railroads, voted by municipal corporations under then existing law's prior to the adoption of the constitution of 1870, are within the saving clause of that article which inhibits all municipal subscriptions or donations to railroad or other private corporations, and may still he paid.</p> <p>5. But the obligations assumed by municipal corporations under then existing laws, prior to the adoption of the constitution of 1870, can not, since its adoption, he enlarged or materially changed, either by the action of the people of the municipality or its corporate authorities.</p> <p>6. Private laws—title must express object, under constitution of 1848. All provisions of a local or private law, passed whilst the constitution of 1848 w'as in force, which are not germane to the subject expressed in the title of the act, are void.</p> <p>7. Construction of statute—that holds the law constitutional will be adopted. A construction of a statute which imputes to the General Assembly a purpose to pass a law directly in opposition to the constitution, will not be adopted by the courts where a different and more reasonable construction will hold the law valid.</p> <p>8. Burden of proof—as to validity of municipal bonds. The burden rests upon the party alleging the validity of municipal bonds, issued since the adoption of the constitution of 1870, to show affirmatively they were authorized by a vote of the municipality under then existing laws, had prior to the adoption of the constitution.</p>

<p>Appeal from the Circuit Court of Bock Island county; the Hon. G-eobge W. Pleasants, Judge, presiding.</p>

<p>1. Mechanic’s uibn—dewee presumed to be correct where the emidence is not preserved. It devolves upon the party complaining of the judgment or decree in proceedings to enforce a mechanic’s lien, to preserve the evidence, and if the evidence is not preserved, the findings of the court will he presumed to be correct.</p> <p>2. Same—purchaser under a special execution against land acquires the title as against parties before the court. Where a petition to enforce a mechanic’s lien, states that the labor was performed for one who was the equitable owner of the lot, though the legal title was in another, and both are made defendants, and the court, after hearing evidence as to the title, renders judgment against the party for whom the labor was performed, and orders that, in default of payment thereof by him or the owner of the legal title, a special execution issue against the land, and that the same be sold, the purchaser at the sale under such execution will acquire the legal title.</p>

<p>1. Bill of exchange—drawer entitled to notice of non-acceptance or non-payment. To charge the drawer of a bill of exchange by the payee, upon the ground of non-acceptance or non-payment, it is usually essential that proof be made of prompt notice to the drawer of such non-payment or non-acceptance, as the case may be.</p> <p>2. Notice to the drawer of a bill of exchange of its non-acceptance or non-payment by the drawee is not essential, when the drawer is so situated that he can not be prejudiced by.the want of notice.</p> <p>3. Same—want of notice of non-payment excuses drawm- when such, want of notice may have injured him. When a drawer of a bill of exchange; in good faith, believes that he has funds in the hands of the drawee to meet the bill, though, in fact, he may not have such funds, he is entitled to prompt notice of the non-acceptance or non-payment, and if such notice is not given lie will not be liable to the payee. In such case the law does not require the drawer to show that he has been actually injured by the want of notice, but only that he may have been so injured.</p>

<p>Trust deed—place of sale. Where a trust deed provides for sale of premises, on default of payment, “at the north door of the court house in said city of Chicago,” these words are not restrictive to the site of the court house in existence at the date of the instrument, but, in case of its destruction by fire, the sale may be advertised and made at the north door of the building in use for a court house.</p>

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

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

Writ oe Error to the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding. On the 18th of June, 1852, Fredrick H. O’Neal made a contract with Stephen Bronson, Jr., to purchase of him one part of the property in controversy, and on the 1st day of July, 1852, he made another contract with him to purchase the remainder of the property. Both contracts were in writing, and placed on record shortly after they were executed.

<p>1. Pleading—plea to suit for contribution. Where one joint debtor is sued and compelled to pay a debt, and sues his co-obligor for contribution, alleging the recovery of judgment against himself and its satisfaction, a plea by the defendant that the court had no jurisdiction of his person, by service or otherwise, presents no defense to the action. If the suit was upon the judgment, it would be otherwise.</p> <p>2. Judgment—when no jurisdiction. A party can not have execution of a judgment rendered in another State, where the court had no jurisdiction either of the subject matter or of the person of the defendant.</p> <p>3. Contribution—right to recover. The principle is well settled, that one obligor or surety who advances money for a co-obligor or co-surety, may be indemnified to the extent of his advances for such other party.</p> <p>4. Where one of two joint obligors discharges the indebtedness, either with or without suit and legal compulsion, he may maintain. his action against,his co-obligor for contribution.</p> <p>5. In a suit by one obligor against his co-obligor, for contribution for money advanced to discharge a joint indebtedness, it is competent for him to plead, or even prove under the common counts, that the money was not voluntarily advanced, but was paid under compulsion, by judicial process.</p> <p>6. Parol evidence—to shoio for what judgment was recovered. In a suit by one joint obligor against another, for contribution for money paid under a judgment rendered in another State, parol testimony is admissible to show for what the judgment was recovered, not to contradict the record, but to show the real cause of action involved in the litigation.</p> <p>7. Remedy—whether at law or in equity. If two parties contract a joint indebtedness, not as partners but as joint purchasers, and one is compelled 'to pay money for the other on such indebtedness, his remedy is at law and not in equity, notwithstanding equities may have arisen since the making of the contract.</p> <p>8. Interest—on money advanced by joint obligor. Where one of two joint obligors advances money in payment of the joint indebtedness, he will be entitled to recover of his co-obligor interest, at the rate of six per cent, from the. date of such advance.</p>

<p>1. Assault to inflict bodily injuiiy—sufficiency of indictment. An indictment averring that the defendant, on, etc., at, etc., Avith a deadly weapon, to-wil: a certain pistol, upon the person of one 0 D,with force and arms, did then and there unlawfully make an assault, with the intent then and there unlawfully to inflict upon the person of the said C D a bodily injury, no considerable provocation then and there appearing, contrary, etc., is sufficient. It is not necessary to aver that the pistol was loaded, that being a matter of evidence.</p> <p>3. Same—provocation. Where the defendant was chasing sheep from his premises with a dog, and a boy seventeen years old shot the dog with a revolver, upon which a scuffle ensued between the defendant and the boy, in which the defendant got the revolver, and struck the boy seAreral severe blows on the head, it not appearing to have been in self-defense, it was held, that the jury could not do otherwise than find the defendant guilty of an assault with intent to inflict a bodily injury.</p> <p>3. Indictment—svfflciency in general. Every indictment, under the statute, shall be deemed sufficiently technical and correct which states the offense in the language of the act creating the same, or so plainly that the nature of the offense may be easily understood by the jury.</p>

<p>1. Amendment—when notice is required. Where an amendment of the 1 record or officer’s return to process is sought at the return term or before cause is disposed of, no notice thereof is required, hut after the case has been finalty disposed of, and the term ended, special notice is necessary.</p> <p>2. Pleading—allegation of promise to pay. In a declaration in assumpsit, where the instrument, sued on does not contain an unconditional promise to pay money, the pleader, after stating the conditional undertaking, and. the happening of the condition, should state that the defendant thereby became liable to pay, and thereupon undertook and promised, etc. But the want of such allegation can he reached only on special demurrer. It is sufficient, except on special demurrer, to state distinctly that which, if proved, will sustain the action.</p> <p>3. Same—declaration on insurance policy. A declaration upon a policy of insurance which shows the making of the policy, the conditions of the contract, the performance of the conditions, and the happening of the contingency upon which the defendant became liable, and his failure to pay, is good in substance, and entitles the plaintiff to recover on default.</p> <p>4. Same—on life policy of insurance. The interest of a parly insuring, in his own life, need not "be averred in a declaration upon the policy, and when the policy is set out in the declaration, and it shows the interest of the plaintiff, this is sufficient.</p> <p>5. Same—variance—surplusage. Where a declaration sets out a policy of insurance or contract in haso verba, and then states its legal effect incorrectly, the latter will be treated as surplusage, and there will be no variance.</p> <p>6. Default—what admitted by. A default admits every traversable allegation in the plaintiff’s declaration, and every ground upon which a recovery is sought, and where the suit is upon an instrument for a definite sum of money, no evidence is necessary upon the assessment of damages.</p>

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

<p>Measure of damages—in trespass for taking coal from, the mine of another. In an action of trespass for taking coal from the plaintiff’s mine, he may recover the value of the coal at the mouth of the pit, less the cost of carrying it there from the place where it was dug, allowing the defendant nothing for digging.</p>

<p>1. Eailroabs—liability of company upon failure to fence track. A railroad company which fails to fence its track as required by the statute is liable for any damage resulting from such failure, whether caused by its own trains or those of another company using its track.</p> <p>2. And a railroad company will be liable for any damage done by its trains, resulting from a failure to fence the track on which the damage is done, although the track may belong to another company; either company is liable in such case.</p>