Volume 85 — Illinois Reports

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

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

<p>1. Error will not always reverse — improper instructions. Where it appears, from, the evidence, that a verdict is so clearly right that, had it been different, the court should have set it aside, such verdict will not be disturbed merely for the reason that there is error found in the instructions.</p> <p>2. Negligence—running engine without a headlight. It is gross negligence for a railroad company to run its trains on a dark night, without a headlight.</p> <p>3. Same—contributory. Although it is gross negligence for a railroad company to run its trains in the dark without a headlight, yet one who, knowing the time for a train to pass, attempts to pass over the road in a hand car, at a time when the train, if on time, will meet and collide with him, is guilty of such negligence as will prevent a recovery by him.</p>

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

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

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

<p>1. Decree—recitals of finding of the cowrt. The recital in a decree of court in a proceeding by an administrator to sell real estate, that it appeared to the satisfaction of the court that due notice had been given of the pendency of the petition, according to law, is not overcome, in a collateral proceeding, by the production of a printer’s certificate, from the files in the cause, showing defective and insufficient notice. v</p> <p>2. Presumption—that there was evidence heard by the court sufficient to sustain the finding. Whilst the notice and certificate of the printer are, by the statute, made competent evidence for the court to act upon in proceedings by administrators to sell real estate, they are not the only evidence, and where the decree recites that the court found due and proper publication of notice, the presumption' is that evidence sufficient to sustain the finding was heard by the court.</p> <p>3. Administrator’s sale—purchase by administrator voidable only. The fact that the purchaser at an administrator’s sale purchases for the administrator, does not render the sale absolutely void, but voidable only, and if proceedings are not instituted in apt time to set the sale aside, by those having the right to contest the same, a ratification by them will be presumed.</p> <p>4. Laches—courts of equity act, by analogy, upon Limitation law. Where courts of equity have concurrent jurisdiction with courts of law, and a party proceed in equity, if barred at law he will be barred in equity, and although the Statute of Limitations may not, in terms, apply to courts of equity, yet, by analogy, equity will act upon the statute, and refuse relief when the bar is complete at law.</p> <p>5. Color of title—what constitutes. Where a third person purchases land at a sale by an administrator, and purchases for the administrator, receiving a deed to himself, and afterwards reconveying to the administrator in his own right, the deed thus obtained by the latter will constitute color of title under the Limitation act of 1839, and, with the requisite possession and payment of taxes, a bar would doubtless be created in favor of the administrator as against an heir of the intestate.</p>

<p>Payment—right as to its application. Where, at the lime of sending a draft, the sender was, as a member of a firm, indebted to the party to whom the draft was sent, in several notes, most of which were then due and bearing interest, and also, in two individual notes, not then due, and maturing some time afterwards, and which bore no interest before maturity, and the debtor, at the time of sending the draft, directed the creditor to hold the amount until advised as to its application, and stating that his partner would send a statement of matters in a few days, and such partner did afterwards write, giving a statement as to the firm notes, with their interest up to the time of sending the draft, and the other debtor made no other direction for several months after, and not until the creditor had applied the draft upon the firm notes, it was held, that the creditor was, under the circumstances, justified in making the application he did, and being rightfully made, it could not be repudiated by the debtor afterwards.</p>

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

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

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

<p>Pbobate of will—when subscribing witnesses disagree. On atrial in the circuit court on appeal from a judgment of the county court allowing the probate of a will", where the subscribing witnesses differ as to the mental condition of the testator at the time of the execution of the will, one testifying that he was of sound mind and the other that he was not, it is not competent to per. mit other witnesses to be examined on the question, and the will can not be' admitted to probate.</p>

<p>1. Fobcible detainee—demand necessa/ry by pwcJiaser at sheriff’s sale. The purchaser of real estate at sheriff's sale can not maintain an action of forcible detainer after receiving a deed, without first making a demand for possession.</p> <p>2. Same—can not be maintained, by purchaser at sheriff’s sale against prior mortgagee in possession. The purchaser of land at sheriff’s sale can not recover the possession from one in possession under a mortgage executed by the judgment debtor prior to the judgment under which his title is obtained, even though the mortgagee took possession after the sheriff’s sale under an arrangement with the mortgagor to allow rent by way of credits on the mortgage debt.</p>

<p>1. Evidence—relevancy as to execution of note put in issue. Where the execution of a promissory note is put in issue by plea verified by affidavit, and on the trial of that issue it incidentally appeared that the plaintiff was, for a time after the date of the note, in the service of one of the supposed makers, proof that plaintiff’s services were worth a certain sum a year, is wholly irrelevant, and it is error to admit the same.</p> <p>2. Hew trial—misconduct of jurors. If jurors, pending a trial and after part of the evidence is heard, and before the case is fully submitted, discuss the merits of the case publicly in the presence of others, stating there is no merit in the defense, and that they will find for the plaintiff without regard to defendant’s argument or the instructions of the court, their conduct will be so improper as to call for a new trial.</p>

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

<p>1. Lunatic—note given for necessaries valid. Although a person may have been adjudged insane, yet, if no conservator has been appointed, and he is in the management of his business, and there' is nothing about his appearance to indicate his incapacity to contract, if he purchases an article at a fair and reasonable price, necessary and useful in his business, the seller having no notice of his being adjudged insane, he will, be liable to pay the price he agreed to pay, and it will be error to enjoin a judgment on a note given for the price.</p> <p>2. Same—contracts of when valid. Notwithstanding the statute, a contract made with a lunatic in a lucid interval, is binding, and may be enforced against him.</p> <p>3. Chancery—defense at law. The fact that a person has been adjudged lunatic or insane, and is under the ban of the law when he gives a note, is a legal defense to an action thereon, and should be made then, and not attempted in equity.</p>

<p>Return upon summons—requisites. It is error to render judgment hy default upon a return of service on the summons made hy the sheriff, with- • out date and without any time named in the return when the service was made.</p>

<p>Partnership—-firm check to pay partner's debt. If a partner consents that a check of the firm may be applied on an individual debt of his co-partner, he may, at any time before such application is in fact made, or the rights of third parties intervene, withdraw such consent, and after notice by him, not to so apply the check, it can not be so applied.</p>

<p>1. Guardian and ward—contracts between, after ward's majority. The mere fact that the relation of guardian and ward has existed, will not preclude the making of contracts between the two after the guardianship has ceased and the accounts fully and fairly settled. After the fiduciary relation has terminated, and the influences which that relation would necessarily create have ceased to exist, the parties may make contracts, which, if fairly</p> <p>and honestly made, based upon an adequate consideration, will be sustained.</p> <p>2. Same—conveyance by ward to guardian. Where a ward, shortly after arriving at age, was induced by her guardian, and before settlement of his accounts, to convey to him her real estate for the expressed consideration of §1300, he paying but §600, and representing that indebtedness amounting to §700 was existing against the land, when such was not the case, it was held, that as the conveyance was made upon a misapprehension of facts induced by the guardian, the transaction could not be sanctioned in equity.</p> <p>3. Same—when advance by guardian is a charge on ward’s land. Advances made by a guardian to his ward can not be regarded as a charge upon the ward’s land, until an account is presented to the county court and approved.</p> <p>4. Same—right of guardian to have his account settled on bill to set aside conveyance to him. Where a guardian procures his ward, after coming to her majority, to convey to him her land, even for an adequate price as expressed in the deed, but paying, in fact, not quite half that sum, he making the ward believe there were charges against the land for the amount not paid, upon bill filed by the ward to set aside the conveyance, the guardian can not have allowed to him the sums due him for advances made to the ward, when his account has never been presented to and approved by the county court.</p> <p>5. Charcery—setting aside a deed—refunding money received. A party seeking relief in a court of equity must do equity. Therefore, if a ward seeks to avoid a conveyance made by him to his guardian after his majority, on the ground of imposition and misrepresentation of the facts, he will be required to return the whole of the purchase money paid to him, or the land should be ordered to be sold to repay the same, as a condition upon which the sale should be set aside.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. James Steele, Judge, presiding.</p>

<p>1. Judicial sale — after a judgment has been paid — subsequent confirmation—rights of the different parties. Where shares of stock in a company were sold under execution after satisfaction of the judgment, and the price bid deposited, under an arrangement that if the judgment had not been paid the sheriff was to take the same, but if satisfied, the bidder was to withdraw the same, and the latter took his certificate of purchase, and had the stock so sold transferred to him on the books of the company, and refused to restore the stock to the original owner, but withdrew the money so deposited, with the consent of the sheriff, who was ignorant of the use made of the certificate, and the sheriff was sued upon his bond, and his sureties compelled to pay the value of the stock sold, it yas held, in a suit bj' the sheriff for the use of his sureties, to recover the price bid for the stock, that the recovery on the sheriff’s bond, and its payment, vested a complete title to the stock in the bidder, and that he was liable for the sum bid therefor.</p> <p>2. Where it being in doubt whether a judgment in a foreign county had been satisfied, and the sheriff had levied the execution on certain shares of stock in a printing association, and it was agreed by the sheriff and another that the latter should bid off the property in satisfaction of the execution, and deposit the amount of his bid, to be withdrawn in case the judgment had been satisfied, this will not justify such bidder in withdrawing the money without surrendering his certificate of purchase, or giving up the stock acquired by him under his purchase.</p> <p>8. If personal property is sold under execution after satisfaction of the judgment, under such circumstances as to amount to notice to the purchaser, of the satisfaction, yet if the execution debtor sues the sheriff, and recovers the value of the property so sold, and the same is paid by the sheriff or his surety, this will make the sale valid and vest a complete title in the purchaser, and the sheriff or surety so having paid will be entitled to the money bid at the sale.</p> <p>4. Where shares of stock in a printing association are illegally sold on execution, after payment of the judgment, but the irregularity is cured by the defendant in the execution collecting the value of his stock of the sheriff, a subsequent arrangement between the defendant in execution and the purchaser, by which other stock is acquired and all canceled, each taking a certain share in the concern, will not affect the sheriff’s right to collect the sum bid for the shares, whether made before or after the recovery against him.</p>

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

Chables S. Zane, Judge, presiding. This was a bill in chancery, by Jonathan E. Miles, against Jonas U. Grove.

<p>1. Chattel mortgage—whether fraudulent, a question of fact. Where a chattel mortgage is regularly executed, acknowledged and recorded before the issue of an execution, it will give a prior lien, and whether it is fraudulent as to creditors is a question of fact for the jury, under proper instructions.</p> <p>3. Evidence—res gestee. Declarations made by the mortgagor at the time of executing a chattel mortgagé, are a part of the res gestee, and admissible in evidence.</p>

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

<p>_ 1. Estoppel—to assert lien, by admission. Where a landlord admits, to</p> <p>an officer holding an execution against his tenant, when asked for informar tion before making a levy, that he has no lien or claim on the tenant’s crop, and in consequence thereof, the same is levied on and sold, without the landlord taking any steps to prevent the sale, he will be estopped from asserting his lien as against the purchaser.</p> <p>8. As a general rule, a party will be concluded from denying his own acts and admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter.</p> <p>3. Where a party induces an officer to levy upon his tenant’s crop by disclaiming any lien upon the same, a purchaser at the sale may take advantage of the estoppel, although he may not have been informed of the admission, as he claims under the officer-, where the landlord takes no steps to counteract the effect of his admission before the sale.</p>

<p>Fraudulent conveyance—under attachment law. An assignment of a party’s property to a receiver appointed by decree of the circuit court, in a case where the court has jurisdiction of the subject matter, and of the parties to the suit, is not a fraudulent disposal of property, within the meaning of the attachment law, and affords no ground for attaching the property so transferred.</p>

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

Cybus Eplee, Judge, presiding. This suit was brought on the 4th day of October, 1873, by George Faul against John Angelo, for .malicious prosecution, in causing plaintiff to be arrested and prosecuted on a charge of burning a hay stack, the property of defendant. On the hearing before the committing magistrate, plaintiff was discharged, and that seems to have been the end of the criminal proceedings, and on the next day this suit was commenced.

John G-. Rogebs, Judge, presiding. This was a proceeding, under an ordinance of the village of Hyde Park, for a special assessment for a certain public improvement in that village. The notice in respect to the proceeding was published in a weekly newspaper called the “ South Side Hews.” Objection was made that the newspaper mentioned was not published in the village of Hyde Park, but elsewhere.

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

<p>1. Reversion—on vacating a street. Where a party, in conveying land to a city for a street, provides in his deed that, when the same shall cease to he used as a street, or the street shall he abandoned or vacated, it shall revert to the grantor, his heirs or assigns, on vacation of the street the land will pass back to such grantor or his assigns, by virtue of such clause, and also upon general principles, without such a reservation.</p> <p>2. Divestiture oe title—ly legislative action. Where, by the terms of the conveyance of land for a street, or under the law in force at the time of the opening of a street, the title to the ground embraced by the street will revert to the former owner on its abandonment or vacation, the legislature has not the power under the constitutional limitations to divest such former owner of his right, and to vest the title in another.</p> <p>3. Boundary—own&r of lot takes no title to street. The limits of a lot abutting upon a street is the extent of the ownership, and it can not be asserted beyond those lines and extended into the street on its vacation.</p>

<p>1. Will—devise of life estate with remainder. A bequest was in these words: “I give and bequeath to my beloved wife, K., during her natural life, all the stock and personal propeiW of which I may be in possession at my decease; also the plantation on which'I reside. * * After the death of</p> <p>my wife, the whole of the home farm shall go to my daughter, Polly; but in the event of her (Polly) dying without an heir, then I direct t-he place to be sold, and the proceeds of said land and personal property to be equally divided among my lawful heirs: ” Held, that the widow took a life estate, only, in the personal property, with remainder to heirs of the testator.</p> <p>2. Same—may be a life estate in personalty. A life estate in personal property, with a remainder over, may be created by will. In such case, upon the death of the tenant for life, the property so bequeathed remaining must be distributed to the remainder-men.</p> <p>3. Error—does not always reverse. The admission of an incompetent witness to testify in a case, where the other proofs and admissions of fact justify the judgment, affords no valid ground for a reversal.</p>

<p>1. Mbbg-br—extinguishment of mortgage—rule in equity. A court of equity will keep an incumbrance alive or consider it extinguished, as will best serve the purposes of justice and the actual and just intention of the parties. The intention is the controlling consideration, and to arrive at this the court will look into all the circumstances of the case.</p> <p>2. If a mortgage is the eldest lien, and is for an amount equal to or exceeding the value of the mortgaged premises, and the mortgagee, to avoid the expense of foreclosure, takes a conveyance from the mortgagor, a court of equity will not permit the mortgaged premises to be swept away from him by a junior judgment creditor, without payment of the mortgage, under the pretense that its lien h&s been lost by merger, but will enjoin the sale at law, or restrict the judgment creditor’s lien to the equity of redemption.</p>

<p>Bill op exceptions—presumption■ to sustain judgment. Where one is made a party to a judgment by scirefacias, and the evidence is not preserved in a bill of exceptions, it will be presumed that it showed the defendants to be jointly liable.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. David J. Bakes, Judge, presiding.</p>

Cybtjs Epleb, Judge, presiding. This was an action of assumpsit, by John Showalter, against John Mason, for money had and received. It appears, the plaintiff bought a tract of land, and procured the defendant to advance part of the purchase money, who took a conveyance in his own name to secure its repayment.

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

<p>1. Attachment—of the affidavit. If an affidavit for an attachment contains a good statement of any one of the grounds for the writ, this will be sufficient-, although another ground is stated which may not be well stated.</p> <p>3. Same—requisites of notice. It is not necessary to state in an attachment notice, to what counties the writs of attachment were directed, or to give a description of the property attached.</p> <p>3. Same—publication of notice. Where the record contains an attachment notice which is correct as to the names of the parties, and certificate of the printer showing its publication, and also shows 'that the court found, from the evidence, due publication of notice, this can not be overcome by an affidavit showing a mistake as to the name of one of the parties, in the first publication.</p> <p>4. Same—publication may expire during term. The present statute does not require that the three weeks publication in an attachment suit shall be made ten days before the term at which judgment is taken, but a part of the publication may he made before the term begins and a part afterwards, and in such case, if the court is in session ten days after the last publication, the plaintiff may take judgment by default, if there is no appearance.</p> <p>5. Practice—time to object to attachment bond. Objections to a deficient attachment bond can not he made, for the first time, in this court, hut must be urged in the court below, so as to afford an opportunity for amend, ment.</p> <p>6. Same—time of filing declan'ationin attachment suit. It is not required, under the present statute, that the declaration in an attachment suit shall he filed at the commencement of the term to which the writ is made returnable, but it may be filed on the first day of the term, or upon any succeeding day, as the plaintiff may elect.</p> <p>7. Declaration—sufficiency on default. A declaration, after judgment by default, will be sufficient, if good in substance, without regard to formal defects, as the default admits all that is properly alleged.</p> <p>8. Bill op exceptions—when necessary. "Where the evidence in a cause is not preserved in the record by bill of exceptions, it will be presumed it was sufficient to sustain the finding and judgment of the court.</p> <p>9. Evidence—to contradict record. Where the record shows that it was written up on the day of the rendition of a judgment, this will import verity and can not be contradicted by parol evidence.</p>

Lyman Lacey, Judge, presiding. This suit was brought by Eli Beep, against the county of Menard, to recover clerk hire and other fees, alleged to be due him as treasurer of that county. Plaintiff was elected treasurer of Menard county, and held that office for two years, ending in December, 1875.

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

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

<p>Mortgage—when deed is held to he. • A deed, absolute on its face, will not be considered as a mortgage unless it be made to appear clearly to have been so intended at the time of its execution, the presumption being that it is not a mortgage.</p>

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

<p>1. Exemption—burden of proof is on claimant. Where a party claims property as exempt from levy and sale, which is not made specifically exempt, the burden of proof rests upon him to show that it is exempted. The law does not presume that a person does not have the property exempted by the statute, nor does the mere claim that property is not enumerated prove that it is exempt.</p> <p>2. Same — of property not specifically exempt. Where property of a debtor, not specifically exempt, is levied upon, if the debtor has other property liable to levy and sale, he must offer to turn it out before he can claim the property levied on as suitable to his condition.</p> <p>3. Same—when pwrty must sham he is the head of a family. If a debtor claims property levied on as exempt, which is not made so specifically, he must show that he is the head of a family and residing with the same, by clear and satisfactory proof.</p>

Thomas F. Tipton, Judge, presiding. Plaintiffs were creditors of the firm of Fitzsimmons & Co. That firm was composed of Patrick Fitzsimmons and Edward Galligan. After the death of Galligan, which occurred in March, 1870, defendant was appointed administrator, and took upon himself the burden of the administration Of the estate. The surviving partner took possession of the assets of the firm, and proceeded to sell the stock on hand and to collect accounts due the firm.

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

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

<p>1. Trespass—opening fence under order of highway commissioners. The order of highway commissioners is no justification in trespass for opening the plaintiff’s fence so as to let cattle into his corn, when it is not shown there was a highway legally established at the place.</p> <p>2. Evidence—laying out road. In trespass for removing a fence over ground claimed for a road, unless a valid order establishing the road has been made, the other papers, such as the petition, etc., are not admissible, as they can only tend to confuse the jury.</p> <p>3. Same—res gestee. Where parties, in removing a fence, state that they are removing the same to open and construct a public road under the order of the commissioners of highways, their declarations will be admissible in evidence as a part of the res gestee.</p> <p>4. Damages—when too remote. In trespass for removing plaintiff’s fence, he can not recover for damages occasioned by being prevented from cultivating part of his land, and evidence tending to show such damages is properly excluded as being too remote.</p>

<p>1. Chancery—new trial at law. Where a bill in chancery is filed for a new trial at law, on the ground of newly discovered evidence, it should be' accompanied by the affidavits of the witnesses who will testify to the facts.</p> <p>3. A court of equity rarely exercises the power of granting a new trial in an action at law, and should do so in no case, except upon clear and satisfactory evidence.</p>

<p>1. Continuance—when affidavit is admitted. It is not error to refuse a continuance on the ground of the absence of a witness, where the opposite party admits the affidavit for the continuance to go in evidence.</p> <p>2. Reward—capture of thief ly agent. Where one employs another to pursue and capture a horse thief, and pays the expenses, he will be entitled to the reward offered by the county for the apprehension and conviction of such thief, on the familiar maxim, “ Qui facit per alium, facit per se."</p> <p>3. Same—of the a/rrest. Where a county offers a reward for the pursuit and arrest, beyond the limits of the county, of any person guilty of stealing any horse, etc., within the county and from a citizen thereof, to be paid on conviction of the thief, the pursuit of the thief to another State under a warrant for his apprehension and a requisition of the Governor of this State upon the Governor of such other State, and bringing the thief back under such warrant, and his conviction, will entitle the person procuring the same to be done to the reward, notwithstanding such thief may have been apprehended and detained in such other State by officers there.</p>

Thomas F. Tipton, Judge, presiding. This was a bill in chancery, exhibited in the court below, on the 29th day of June, 1872, by William J. Mayers and Linus Graves, to foreclose a mortgage. It appears that, on the 20th day of February, 1856, John Mayers, as principal, and William J. Mayers and Linus Graves, as sureties, gave their promissory note to Oliver March, for $858, payable with interest.

Writ of Error to the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. This bill was filed in the McLean county circuit court, hy the trustees of schools of township 24 north, range 2 east, 3d principal meridian, against Albert L. Otis and his sureties, to so reform his official bond, as treasurer of that township, that his sureties might be liable for the default of the treasurer.

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

<p>Writ of Error to the Circuit Court of Hancock county; tiie Hon. Joseph Sibley, Judge, presiding.</p>

<p>1. Sale—by agent to his own firm. Where one sells corn of a certain grade, with an agreement, if it is not of that grade, the purchaser may sell the same on the market for the best price he can get, and account for the proceeds, if the purchaser sells the same, he will be the agent for the original seller, and is not authorized to sell the same to a firm of which he is a member, and if he does, he will be treated as the purchaser, with a right to</p> <p>deduct the difference, in value between the corn delivered and the contract price, provided the original seller does not affirm such sale.</p> <p>2. Agent—ratification of sale to Ms firm. If an agent sells to his own firm, the principal has an election to adopt the act, and if he deliberately and freely ratifies the act of the agent, or acquiesces in it for a great length of time, it will become obligatory on him, not by its own intrinsic force, ■ but because he waives the protection given him by the law.</p> <p>3. Where an agent sold corn of his principal to his own firm, and gave the principal a statement thereof, and no objection was made for two years, and the parties had a settlement of accounts, in which no allusion was made to the transaction, it was held, that the principal thereby ratified the sale so made by the agent.</p>

<p>1. Surgeon—liability for want of skill. A physician and surgeon is required to possess, and in his practice to use, reasonable skill, not the highest, perhaps, but such as physicians in good practice ordinarily use. He can not be regarded as an insurer of a successful result in all cases attended to by him.</p> <p>2. In an action against a surgeon, for mistreatment of the plaintiff’s fractured elbow, the court instructed the jury that if the defendant could have learned the nature of the injury, and applied the proper remedy, and failed to do so, he was liable, was held erroneous, as requiring too great a degree of skill, and as calculated to mislead.</p> <p>3. So, an instruction that “the law holds the defendant liable for damage done, if he was incompetent, and if competent, he is liable, unless he used his full skill and ability, and damage was caused thereby,” was held, erroneous, as requiring too great a degree of skill in the practice.</p> <p>4. Negligence — comparative. A plaintiff may recover for injuries where his negligence is slight as compared with the defendant’s, which is gross.</p> <p>5. Instructions—should be harmonious. One correct instruction will not always cure an erroneous one. The court should harmonize the instructions, else they are calculated to confuse and mislead the jury.</p>

Writ of Error to the Circuit Court of Montgomery county; the Hon. Horatio M. Vande veer, Judge, presiding. On April 2, 1873, Frederick Wucherpfenning and Mary E. Weller gave their joint promissory note, payable to Win. D. Corn, at ninety days, for $800. This note was assigned to Samuel 0. Thompson, who brought suit against the makers August 13, 1873. Mary E. Weller pleaded coverture at the date of the note and its continuance until the filing of the plea.

Lyman Lacey, Judge, presiding. On the 5th day of September, 1856, John Harrison, who was then the owner in fee simple, conveyed the lands in controversy to David Miller, and on the same day took from Miller to himself a mortgage on the same lands to secure $1200 of the purchase money.

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

<p>1. Grant—of land can only be by deed or contract. Where a railway company, in conveying a tract of land owned by it, reserved a strip of land on each side of its track, and another strip crossing the first, for railroad purposes, upon which another company, some sixteen years afterwards, laid the track of its road by permission, it was held that this reservation passed no title, legal or equitable, to the latter company, as to any of the strip not actually occupied by it.</p> <p>2. Possession—extent, when taken without evidence of title. Where a person claims possession of real estate without a deed or other instrument in writing calling for boundaries, his possession will not extend beyond what he has inclosed or actually occupies. Where a railway company constructs its track over the land of another, and erects buildings thereon, without any written evidence of title, and does not inclose the same, its possession will be limited to the ground actually occupied.</p> <p>3. Dedication—to railway company, by plat. The statute providing that streets, alleys and public grounds so designated on a town plat, when properly certified, etc., shall operate as a conveyance in fee to the public, does not apply in favor of individuals or private corporations. Therefore, if a deed for land reserves a strip of land for railroad purposes, according to a diagram which shows the name of the railway company, it will not operate as a conveyance of the strip to the company, or a dedication. Such a reservation, if it states that it, or any portion of it, was for the sole use of the company, might possibly operate as a declaration of a trust enforcible in equity, but this point is not decided.</p> <p>4. Eminent domain—law in respect to railroads construed. The general railroad law authorizing the purchase of lands for right of way, etc., the acceptance of donations for the same purposes, and giving the right to take possession and use such lands, does not mean that, if an owner permits a railroad company to enter, pending litigation to ascertain the damages, or without litigation, he will lose not only his damages, but also the land. The owner will lose none of his rights by permitting the company to take possession without grant or condemnation.</p> <p>5. Conveyance—when reservation enures to third, pae-ty. A reservation in a conveyance of land may operate in favor of third persons who have existing rights at the time it is made, but not to one who has no present right, legal or equitable, to the part reserved.</p>

<p>1. Pleading and evidence—-facts admitted need not he proved. Where a fact is alleged in a bill in, chancery, and is admitted by the defendants in their answer, the complainant need not prove such fact.</p> <p>3. Lew—when plaintiff may release. If judgment by confession under a warrant of attorney, is entered against several as the makers of a note, and the name of one is a forgery, the judgment will be a nullity as to him, and the plaintiff may rightfully release his property from levy under an execution issued on such judgment.</p> <p>3. Surety—induced to sign ly fraud of principal. Where a party, when asked to sign a note, as surety, refuses unless another person will first execute the same, and the principal maker forges the name of such other person, and thereby induces the party to sign, and procures money of an inno-</p> <p>cent party who has no notice of the fraud, the fact of the forgery and the fraud will not release the surety so executing the same.</p> <p>4. Where one of two innocent parties must be a loser by the deceit or fraud of another, the loss must fall on him who employs and puts trust and confidence in the deceiver, and not on the other.</p> <p>5. Former decision. The case of Seely v. The People, etc. 37 Ill. 173, is departed from so far as it conflicts with the rule as above laid down.</p>

Oliver L. Davis, Judge, presiding. This action was brought by Sarah Jane Mann against David S. Blackburn, to recover damages for a breach of a marriage contract, alleged to have existed between the parties. The declaration is in assumpsit, and contains three counts. In the first count it is averred, in consideration plaintiff had, on request of defendant, promised to marry him when thereunto requested, he promised to marry her when he should be requested.

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

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

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

<p>1. New miAjj—finfong as to facts. If the preponderance of the evidence on a trial for slander shows that the words spoken were true, the plaintiff will not be entitled to recover, and if the jury find for him, a new trial should be granted.</p> <p>2. Malicious prosecution—does not lie, if there was probable cause. A defendant will not be liable for a malicious prosecution in causing the plaintiff’s arrest, if he had probable cause, or a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused was guilty of the offense charged.</p>

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

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

Samuel M. Moore, Judge, presiding. On the 22d day of 'May, 1874, Carol Gaytes filed his bill in the Superior Court, against Mahlon D. Ogden, in which it is alleged, the Kiverside Improvement Company had issued its bonds in the sum of $50,000, payable to bearer, and secured the same by trust deed in the usual form, containing power of sale, in which Ogden was trustee for such parties as should become owners of the indebtedness.

<p>Appeal from the Circuit Court of Logan county; the Hon. Charles H. Wood, Judge, presiding.</p>

<p>Promissory note—as evidence of settlement of accounts. Although the giving of a promissory note, of itself, unexplained, is not sufficient evidence of a settlement of all demands between the parties, yet, it may be considered by the jury, with other evidence or facts, to show a settlement of prior accounts, and may be weighed in the light of the surrounding circumstances.</p>

C. L. Higbee, Judge, presiding. This was an action on the case, brought by Harding against Kenner, in the circuit court of McDonough county. A trial resulted in a verdict and judgment in favor of the plaintiff, whereupon the defendant appealed.

Thomas F. Tiptom, Judge, presiding. This was an action of assumpsit, by Almond B. Ives, for the use of Samuel FT. Young and Abner S. Bacus, against Thomas Snell, Abner Taylor, James Aiken and Thornton Snell, late partners under the name and style of Snell, Taylor & Co. The plaintiff’s claim originated as follows: The township of Bloomington had voted a subscription of $100,000 to the Lafayette, Bloomington- and Mississippi ¡Railroad Company.

Lyman Lacey, Judge, presiding. This was an action of assumpsit, brought by Thomas J. Yanbrunt, as assignee of E. E. Fenner & Co., against David Singley, upon a promissory note, as follows: “ $336.

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

Chaeles S. Zaee, Judge, presiding. This was an action on the case, by Jonathan E. Saunders, against the Chicago and Alton Eailroad Company, to recover damages for the killing of plaintiff’s horses on defendant’s road. It was admitted, on the trial, that the defendant corporation owned the road formerly known as the Chicago and Mississippi railroad, and succeeded to its property.

Weit of Eeeoe to the Circuit Court of Ford county; the Hon. Thomas F. Tiptoe, Judge, presiding. This ease originated in the county court of Ford county. Lettv Dye, administratrix of the estate of James Dye, deceased, by her attorney in fact, Thomas C. Dye, filed in the county court, for allowance, a claim against the estate of Benjamin F. Dye, deceased. The defendants, William Noel and David A. Frederick, were the executors of the last will of said Benjamin F. Dye, deceased.

Oliver L. Davis, Judge, presiding. This was an action on the case, by Daniel R. Cracraft, against the city of Paris, for causing water to flow upon and injure the plaintiff’s premises, by the construction of an insufficient sewer along the same to carry off the water. The proof showed that the water formerly flowed, by a natural drain, through a lot of a Hr.

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

<p>1. Thus’s—fwhen grantee of land holds in trust. Where one buys land in the name of another, and pays the consideration money for it, the land will generally be held by the grantee in trust for the person who pays the consideration.</p> <p>2. Where a father purchased and paid for a tract of land for a crippled son, but had a conveyance made to another son, who knew nothing of the transaction at the time, the reason for so taking the deed being, that the crippled son, at the time, was involved in debt, and the father was living with a second wife, who would not join with him in making a conveyance if he should take the deed to himself, it was held, that the grantee held simply the legal title in trust for the other son.</p> <p>3. Same—purchaser without notice. Although a grantee in a deed may hold the legal title in trust for another, this will not preclude a third person from acquiring the title free from the trust by sale on execution against such grantee, if he has no notice of the manner in which the title is held, and acts in good faith.</p> <p>4. Judicial sale — when set aside as a cloud. Where an attorney brought suit by attachment against his client for the collection of a fee of $100, the client being amply responsible, and residing only about sixty miles distant, where he could have been sued before a justice of the peace, and the debt made, if a meritorious one, and, under the proceedings, land worth over $5000 was sold for only $128, and no notice of the sale and purchase was ever given to the client, it was held, under the peculiar circumstances, that, as against the attorney, the sale could not be sanctioned, on bill to set aside the same as a cloud upon the title.</p> <p>5. Fraud—title acquired held fraudulent. Where a party, being a relative, and on the most intimate business relations with others whose land had been sold at a grossly inadequate price, on a judgment in attachment, without the knowledge of the owners, acquired the certificate of purchase,</p> <p>which fact, as well as the sale, he carefully concealed, and had a deed made to a third party for his own benefit, it was held that the concealment of all information from the parties interested when the business relations were so intimate, his recent purchase, together with the inadequate consideration, were sufficient to condemn the transaction as fraudulent, and that it could not be sanctioned in equity.</p> <p>6. Limitation—under act of 1839—meant land. Where land was sold on execution, and shortly after the sale the judgment debtor, who had no notice of the sale, conveyed the land to another in good faith, under which conveyance the grantee, and those succeeding him, paid all the taxes for seven successive years after the time for redeeming from the sheriff’s sale had expired, and while the land was vacant and unoccupied, and then went into possession, it was held that the party claiming under the sheriff’s sale was barred under the 9th section of the act of 1839.</p> <p>7. Same—when it begins to run. The statute begins to run against a purchaser of land at sheriff’s sale, in favor of one acquiring color of title, from the time when such purchaser is entitled to a deed.</p> <p>8. Same—payment of tames. The fact that two persons appear to have paid taxes jointly on a tract of land after it is divided, will not invalidate the payment of either as to his part of the land. The manner in which the taxes are paid is not material.</p> <p>9. Same—occupancy by squattei'. The occupancy of land by a mere squatter will not prevent the running of the Statute of Limitations as to vacant lands, except as to the part actually occupied.</p> <p>10. Same—enforcement in equity. While it is true, a court of equity might refuse to set aside a title as barred by the Statute of Limitations, as a cloud upon the title of the one claiming the benefit of the bar, yet, if equitable grounds of relief exist, the bar of the statute may be considered in connection with them.</p>

<p>1. Municipal subscription—condition as to amount of work done, construed. A proviso in a statute authorizing a municipal subscription to a railway company, that the corporate bonds shall not be delivered until an amount of work shall have been done on the railroad in the town equal in valiie to the amount of the bonds, will be construed, not as referring to earth-work alone, but the word “ work ” will embrace all that enters into the construction of the road-bed complete for the cars.</p> <p>2. Same—alteration of petition for election. Where a petition calling for an election to take a corporate subscription in a railway company, was, on the morning of the election, altered by striking out a clause that the bonds were to be delivered as fast as the work on the road should progress within the town, leaving the statutory condition to apply, that no bonds should be delivered until the value of the work on the road should equal the amount subscribed, it was held, that as the alteration worked no injury on the town, it did not invalidate the election, or work a loss as to the right of the company to have the bonds issued and delivered.</p> <p>3. Same—purchase of another road as a defense. Where, at the time a corporate subscription to a railway company is voted, the law authorizes such company to consolidate or purchase other roads connecting with it, the subsequent exercise of the power given by law, in the purchase of a connecting road, will not defeat the subscription so voted; and if the purchase is unauthorized, it will form no excuse for not paying a subscription previously made.</p> <p>4. Same—fraudulent representations to induce rote. Where the petition for an election, to vote upon taking a subscription by a town for a railroad, provided only that the road should run through the town, without fixing any more definite line, evidence that the officers of the company, at the election, made speeches declaring that the road would be located through the center of the town, when, in fact, it was subsequently located through</p> <p>the town on one side thereof, without any offer to prove that such declarations were not made in good faith at the time, and were relied on by a sufficient number of voters to have changed the result, is properly excluded.</p> <p>5. Same—tender of stock. Where corporate authorities, when called upon to make a 'subscription to a railway company and deliver bonds in pursuance of a vote, refuse to issue the same, no tender of certificates of stock is necessary before applying for a mandamus to compel their issue and delivery. A readiness to deliver such certificates is sufficient.</p> <p>6. Same—when vote is equivalent to actual subscription. Where a subscription is voted in favor of a railway company by a town, under a law which leaves no discretion in its officers but to make the subscription without unnecessary delay, a mandamus may be awarded to compel the issue and delivery of the bonds of the town, although no formal subscription has been made upon the books of the company.</p> <p>7. Railroads—change of name. A finding, that a resolution for the change of the name of a railway company was adopted by a two-thirds vote of the stockholders, and that the required certificates of the change were filed in the proper offices, will be sufficient to show a prima facie compliance with the statute.</p> <p>8. Pleading and evidence—proof as to matters not in issue. It can not be urged, in defense to a petition for a mandamus for the issue of corporate bonds voted, that the company suing had purchased another railroad or exchanged stock with such other company, where there is no such defense alleged in the answer, but only a consolidation with such company is averred.</p> <p>9. Variance—exhibit in petition for mandamus. It is not a fatal objection to awarding a mandamus to compel the issue of corporate bonds voted as a subscription, that the copy of the petition for the election set out in the pleadings, is not the same as the one signed by the original petitioners, it having been altered in an immaterial respect. The strict rule applicable to instruments_declared on does not apply.</p>

William H. Snyder, Judge, presiding. Appellant, in April, 1868, filed his bill in equity, against appellee, in the court below, alleging that he was lawfully possessed, as owner, of a certain tract of 46 £ acres of land, in the vicinity of G-reenville, in Bond county; that appellee had been trespassing thereon, and was threatening further trespasses, by cutting and removing timber, wood, etc., from the land, and that he was insolvent.

<p>1. Law and fact—as to competency of servant employed. In a suit by a miner to recover for personal injury while being lowered into the mine, from the alleged incompetency of the engineer, the court should give only the law as to the liability of the defendant in case of negligence in the employment of an incompetent engineer, without intimating any opinion in regard to the force of the evidence showing such negligence. What time or training is requisite to make one a competent engineer, is no question of law, but one of fact only.</p> <p>2. Measure oe damages—mental suffering no element in case of injury by negligence. In a suit to recover for a personal injury, caused by the employment of an incompetent servant, mental suffering of the plaintiff is not a distinct element of damages, in addition to bodily suffering.</p>

<p>Bescission of contract—when money paid on purchase may be recovered bach. Where a sewing machine is sold, to be paid for in installments, but a different one sent to the buyer, which does not work well, and the agent promises to replace it with another one, which he afterwards refuses to do, and on refusal to complete payments the agent replevies the machine, without offering another one, this may be regarded as such an act as to authorize the purchaser to rescind the contract, and recover back the payments made on the purchase.</p>

Writ of Error to the Circuit Court of 'Lawrence county; the Hon. James 0. Allek, Judge, presiding. This was an action of trespass, brought originally before a justice of the peace, by John Scott against Lee Buck, and taken on appeal to the circuit court, where a trial was had resulting in a verdict and judgment for the defendant.

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

Amos Watts, Judge, presiding. This was a suit brought by W. ft. Schnyder and Caspar Krone, school directors of district number four, township three north, range one west of the third principal meridian, against John Parks, to recover back money alleged to have been improperly paid to the defendant out of the school fund. A trial resulting in favor of the defendant, the plaintiffs appealed.

Amos Watts, Judge, presiding. This was a bill in chancery, filed by John A. Crain, as one of the executors of the last will of Dempsey Kennedy, deceased, and also guardian, against the two other executors and the devisees, to restrain the sale of .real estate, and to re-state the executors’ account. The court below dismissed the bill.

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill in chancery, by William C. Hewitt against James F. Labadie and others, heirs of Peter Labadie, deceased, for the partition of two town lots. The defendants demurred to the bill. A decree was rendered granting the relief prayed.

<p>1. Married women—mortgage by, without joinder by husband. A mortgage, given by a married woman residing with her husband, to secure the purchase money of real estate purchased by her, in which her husband does not join, as required by the statute in force at the time, and acknowledged simply as a feme sole, is absolutely void.</p> <p>3. Chancery practice—relief not sought by the pleadings. On bill to foreclose a mortgage, which is void as being given by a married woman without her husband uniting in its execution, no decree can be entered for the enforcement of a vendor’s lien, where the bill makes no such case, and is not framed for any such relief.</p>

<p>Appeal from 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>1. Contract in writing—contemporaneous verbal agreement not to enforce it—consideration. A plea to an action on a promissory note alleged that the payee, being the father of defendant’s wife, advanced to defendant and his wife the sum mentioned in the note, as an advancement to his daughter,</p> <p>and that defendant thereupon executed the note, and that its only consideration was the money so advanced to defendant and his wife; and that, before, etc., it was expressly understood and agreed by and between the payee and defendant that the latter should never be required to pay the note or any part thereof; that the note was given merely as a memorandum of the said advancement, and for the purpose of attesting the same, and for no other purpose, and that, after the execution of said note, the payee, on divers times, etc., in conversations had with defendant and others, disclaimed all intention of holding the defendant liable on said note, and expressly declared and asserted that defendant should never be required to pay the same or any part thereof, etc: Held, on general demurrer, that the plea presented no defense, as it only set up a contemporaneous parol agreement different from the tenor of the note, and did not amount to a plea of want or failure of consideration.</p> <p>2. Contract—varying written, by parol. The terms of a written contract can not be varied, altered or changed by parol evidence. When reduced to writing, the prior and contemporaneous verbal agreements of the parties are merged in the writing, from which alone is to be determined the terms and conditions of the contract, and the liability of the parties.</p> <p>8. Consideration—promise without, is not binding. The declaration or promise of the payee of a note, that he will not collect the same, or any part thereof, without any consideration therefor, is a mere nudum pactum.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. On the 7th day of October, A. D. 1875, Joseph B. JVlessich, claiming to act as judge of the City Court of East St. Louis, issued a summons, in which appellees are named as plaintiffs and appellant as defendant, returnable before him, at his office in East St. Louis, on the 13th of that month. The amount of the demand indorsed upon the summons was $220.13.

<p>Widow’s award—effect of ante-nuptial agreement. A provision in an ante-nuptial agreement that the wife, at the husband’s death, shall have and receive from his estate the sum of $1500, which shall be received by her in lieu of her- dower, and in full satisfaction of all other rights, claims and interests which she might otherwise have, does not, of itself, bar her claim to the widow’s award under the statute. It is the receipt of the money that is to have that effect, and, until it is paid or tendered to her, she will have the right to have appraisers appointed to appraise and set off the award.</p>

<p>v 1. Practice—proof of title to land, without objection. In trespass for injury to land, if the plaintiff is allowed to testify to his purchase and ownership of land without objection, this will be sufficient evidence of title in him to maintain the action. Objection to such evidence comes too late in this court.</p> <p>2. Respondeat superior— liability of railway company for tortious acts of men employed by contractor. A railway company is liable for the trespass of hands employed by its contractors while engaged in the construction of its road, and where the fact appears that the trespass consists in entering upon the plaintiff’s land and digging up the soil, and making embankments, it is not error to refuse evidence that the company had nothing to do in employing the hands doing the work, but that they were employed and paid by the contractors.</p> <p>3. Possession—where it extends to whole tract. Where ownership of land, is proven in a party, it will extend to and embrace the entire tract, although proof is made by parol evidence, if given without objection.</p> <p>4. Trespass—when it lies. A party, by virtue of his ownership of land, can maintain trespass against an intruder upon the same, where there is no adverse possession.</p> <p>5. Evidence—opinion as 1¿o damages. In trespass against a railway company for an unauthorized entry upon the plaintiff’s land, and digging up the soil, erecting embankments, and obstructing water courses so as to flood the land, where witnesses first state that they have personal knowledge of the injuries, and detail their character, it is then competent to receive their opinions as to the amount of the damages sustained.</p> <p>6. Negligence—liability for stock hilled where road is not fenced. The fact that the owner of stock permits it to run at large, in violation of the act prohibiting domestic animals from running at large, does not relieve railroad companies from their duty to fence their roads, or their liability for stock injured in consequence of their failure to do so.</p> <p>7. In a suit against a railroad company for stock killed or injured in consequence of its neglect to fence its road, where it appears such stock were permitted to run at large in violation of law, the question whether the owner has been guilty of contributory negligence in permitting them to run at large, is one of fact, to be determined by the jury from the circumstances of the case.</p> <p>8. Same — contributory from, letting stock run at Iwge. To charge the owner of stock, killed by a railroad company on its unfenced track, with contributory negligence in allowing it to run at large contrary to law, it must appear he did so under such circumstances that the natural and probable consequence of doing so was, that the stock would go upon the railroad and be injured.</p> <p>9. Same—burden of showing contributory negligence. In a suit by an owner of stock suffered to go at large contrary to law, against a railroad company, to recover damages for killing or injuring the same in consequence of its track being unfenced, the burden of showing contributory negligence on the part of the plaintiff, where it does not otherwise appear, is upon the railroad company.</p>

<p>1. Guardian’s save—jurisdiction—notice of application. Where the record of a proceeding by a guardian for the sale of his ward’s land fails to show any notice of the application, to the wards, the decree purporting to</p> <p>authorize the sale will be void for want of jurisdiction, and may be attacked collaterally.</p> <p>2. Same—no title passes till sale is approved. In the absence of any report of the sale of land by a guardian for the support and education of his ward, and its confirmation by the court, no title will pass to the purchaser.</p>

<p>Appeal from the Circuit Court of St. Clair county.</p> <p>This was an action on the case, by Patrick H. Stack, against the city of East St. Louis.</p>

Clair county; the Hon. William H. Skyder, Judge, presiding. This was an action of ejectment, by Bridget Hackett against the city of East St. Louis. The general issue was filed, and a trial had, resulting in a verdict and judgment in favor of the plaintiff.

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

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

<p>1. County dine—act fining, for Edwards county, construed. The act of January 22, 1829, defining the southern boundary of the counties of Wayne and Edwards, provides that it shall begin at the S. W. cor. of sec. 18, T. 3 S., E. 5 E., and running thence east along the middle line of township 3 to the S. E. cor. of sec. 13, T. 3 S., R. 9 E., for the county of Wayne, and from thence east along said line to the Bon Pas creek, or to the Wabash river, as the case may be, for the county of Edwards. Owing to errors in the government surveys where this line reached another meridian, there was a jog in the lines of about ninety-five rods. It was held, that the line was not to be continued straight without reference to the jog, but was intended to run through the center of the several townships until it reached the creek or river, as the case might be.</p> <p>2. Same—long acquiescence in, binding. Where the public authorities, for a long series of years, have recognized a certain line as the boundary between their respective counties, public policy forbids that such line shall be changed, even though such line was not the one intended. „</p>

<p>Writ of Error to the Circuit Court of Saline county; the Hon. Andrew D. Duff, Judge, presiding.</p>

<p>1. Mandamus—not granted when right is doubtful. The rule is uniformly established, that a relator must show a clear right before relief will he granted by mandamus. If the right be doubtful or uncertain the court will not interpose.</p> <p>3. Same—in matters of discretion. Where the performance of a duty by a public officer is discretionary, and depends upon the exercise of his judgment as to its necessity or propriety, the court will not interfere to determine how or when he shall exercise the power, but will leave him in the free exercise of his discretion, to act as he shall deem proper. Of this character is the power vested in county hoards to construct bridges.</p> <p>3. Same—when it lies against public officer. Where a duty is imposed to perform a specific act and there remains no discretion to be exercised, the writ will generally lie against an officer to compel its performance; but when the duty is general, depending on judgment and discretion, the writ does not lie.</p> <p>4. Bridges—building, a matter of discretion. County hoards, in counties not under township organization, have the discretionary power to build bridges when they deem the public interest to require them, and the funds of the county will justify the same. This power is beyond the control of the courts.</p> <p>5. Roads—duty to Jceep in repair. If county commissioners were to wholly neglect to have the roads in their counties repaired, no doubt they could be compelled to proceed to have repairs made, but not in a specific manner, but to the performance of the duty, generally, under the statute.</p>

<p>Writ op Error to the Circuit Court of Fayette county; the Hon. H. M. Vandeveer, Judge, presiding.</p>

<p>1. Fraud—-false representations. Evei-y false affirmation does not amount to a fraud. A knowledge of the falsity of the representations must rest with the party making them, and he must use some means to deceive or circumvent.</p> <p>2. Same—to moid a settlement. Where a civil engineer, on settlement of his account with a railway company, was induced to accept bonds of the company in payment, on the representations of the president of the company that the bonds were worth eighty-five cents on the dollar, and that the railroad had, up to that time, paid all expenses of its operation and the interest on its indebtedness, and it afterwards appeared that the company had paid all expenses and interest as stated, but it was not from the earnings of the road, and it was not shown that the president had knowledge of this fact, and it was not shown in evidence what was the value of the bonds at the time, but only that some three months afterwards they were of little value, it was held, that the facts did not show such a fraud as to authorize an opening of the settlement, and a suit to recover for the services rendered.</p> <p>3. Settlement—may he moided for fraud. A settlement of a claim for services by taking certain bonds in full, may be abandoned by a party, and he be allowed to sue on his original account, if he was induced by fraud to accept such bonds in settlement, by bringing them into court.</p>

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

William H. Snyder, Judge, presiding. On October 7,1870, the appellant assured the life of appellee in the sum of $2500, for the benefit of his wife and children. The contract, as purported by the policy, is between appellant and the wife and children of appellee. The policy was continued in force for five years, by the payment of premiums in notes and cash, the notes still remaining unpaid.

<p>1. Surety—liability construed strictly. The undertaking of a surety is to he construed strictly, and he is hound to the extent, and in the manner, and under the circumstances pointed out in his obligation, and no further. This rule applies to sureties on official bonds.</p> <p>2. Same—where sheriff is ex officio collector—what sureties are liable for revenue collected. The sureties on a sheriff’s bond are not liable for the failure of the sheriff, as ex officio collector, to pay into the county treasury the commissions retained by him out of the revenue for collecting it, in excess of the amount to which he is entitled as compensation under the allowance of the county board, but the sureties on his bond as collector are liable.</p> <p>3. Fees and salaries—collector's commissions above his allowance to be paid into county treasury. Where the sheriff has received from other sources the amount of his compensation as fixed by the county board, it is his duty, as collector, to pay over his commissions for collecting the revenue to the county treasurer, and his bond as such is not satisfied until he does.</p>

Amos Watts, Judge, presiding. This was a bill in chancery, by Johnson A. Power, against George Briscoe, to compel the latter to. contribute his just share in the payment of a debt secured on the lands of both parties by a deed of trust.

<p>1. Practice—judgment must ie taken against all defendants served, in actions ex contractu. It is a rule of practice, that in all actions on contract, if a recovery be had, it must be against all the defendants served, unless a defense is interposed by one or more ¡personal to themselves, such as coverture, infancy, bankruptcy, etc.; and such personal defense must be pleaded and proved.</p> <p>2. Where several persons were sued in an action ex contractu, and all served, and no defense interposed by any of them, it was held error to render judgment against part of them only.</p> <p>3. Bankruptcy—effect of stay on pending suits. An injunction issued in proceedings of bankruptcy before a discharge, restraining a creditor and Ms attorneys from prosecuting an action in the State courts, does not de-</p> <p>prive the State court of jurisdiction, and a judgment rendered hy the latter court against him is not erroneous.</p> <p>4. Same—law construed, as to staying suits in State courts. The provision in the bankrupt act, that no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit, etc., until the question of the debtor’s discharge is determined, was not intended to prevent a plaintiff from having judgment against such debtor when he is sued jointly with others in an action ex contractu. In such case, judgment may be rendered against all, and an order made staying execution as to the bankrupt until the question of his discharge is determined.</p> <p>5. Same—staying judgment. Where judgment is rendered against one pending proceedings in bankruptcy, in a suit on a contract against him and others, the court, on a proper application by any one interested in the assets of the bankrupt’s estate, should enter an order staying execution against the bankrupt until the question of his discharge is determined. On such appli-. cation, the proper practice requires that a petition setting out the order of the district court be presented, together with other necessary facts on which to base the order.</p> <p>6. Attorney’s fee—allowance in judgment. In rendering judgment against parties, it is error to include an allowance for the plaintiff’s attorney’s fee.</p>

Horatio M. Vandeyeer, Judge, presiding. This suit was brought against the administrator and heirs at law of William Guy, on a promissory note made by William Guy and Qgden Cary, on the 9th day of July, A. D. 1865, to plaintiff, by the name of J. C. Gericks, for the sum of $100, with interest at 10 per cent per annum from date. Both makers have since died. William Guy died February 7, 1865, and Ogden Cary, on the 28th of August, A. D. 1869.

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

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

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

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

<p>1. Pleading Aim evidence—admission by plea of non est factum. In an action of debt upon the second bond given by a justice of the peace, where the declaration recites the giving of a prior bond, and notice by the surety to give a new bond, the plea of non est factum, verified, without any other plea, admits all the allegations of the declaration, except the execution of the bond sued on.</p> <p>2. Alteration—its materiality. After the execution of a new bond by a justice of the peace in pursuance of a notice by his surety in the original bond, the clerk of the county court, on its return to him, and without the knowledge or consent of the sureties, inserted therein, after the recital of the election, etc., the words “ and given up by A B, his security on, etc., and required to file new bond as such justice of the peaceHeld, that the alteration was immaterial, as it did not, in the least, increase or lessen the undertaking of the sureties, and did not render the bond void.</p> <p>3. Same—material alteration in official bond avoids it. It is no doubt true, that a material alteration of an official bond, increasing the liability of the sureties, without their consent, would release them from the obligation they had assumed in the execution of the instrument.</p> <p>4. Official bond of justice of the peace. The statute requiring a justice of the peace to file a new bond, on notice of a surety of his unwillingness to stand security longer, does not require the new bond to contain a statement or recital other or different from a bond filed in the first instance. It is the surety’s notice, filed with the county clerk, which is the authority for the new bond, and not any recitals inserted therein.</p> <p>5. The notice which the surety gives to the county clerk is required to be filed, and when filed, it becomes a part of the files of his office, and when the question arises whether the justice, in filing a new bond, has acted under and in pursuance of the statute, resort may be had to the notice for the purpose of showing that fact.</p>

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

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

<p>1. Hants—whether they may be sued alone for ancestor's debt. A creditor can not maintain an action against heirs, on a debt of their deceased ancestor, without also joining the personal representative of the deceased as a co-defendant, except in two cases—first, where a judgment has already been obtained against him, and there are no assets in his hands for its payment, and second, where the estate has not been administered on within one year from the death of the ancestor.</p> <p>3. The personal estate of a deceased person is the primary fund for the payment of his debts, and a resort to the realty can not be had until the personal estate is exhausted. Therefore, a creditor, before suing the heirs, should sue the personal representative, even though the personal assets are insufficient to pay all the debts, or in case the personal estate is not sufficient, he may sue the administrator and the heirs of the deceased jointly, and then the assets in the hands of the administrator are first to be applied in payment of the judgment.</p> <p>3. In an action by a creditor, against the heirs of a deceased person, on a note due from their ancestor, the declaration, after showing the indebtedness, alleged, in substance, that the deceased left real and personal property to the value of §30,000; that the personal property was insufficient to pay his debts; that the real estate had been sold and converted into monej’-, by the heirs, before the commencement of this suit; that the note remains unpaid, and that the defendants are the heirs, and inherited the estate of said deceased: Seld, that the declaration failed to show sufficient grounds for omitting to join the personal representative as co-defendant with the heirs.</p>

Wbit oe Ebbob to the Circuit Court of Edwards county. This was an indictment, in the court below, against Swartzbaugh.

James C. Allen, Judge, presiding. This was an action on the case, in the court below, by Funk, against the railroad company, to recover damages for the destruction of the plaintiff’s house, and the goods therein, by fire alleged to have been communicated to the building by sparks and brands of fire which escaped from a locomotive engine of the defendant while passing the plaintiff’s premises. • A trial resulted in a verdict and judgment in favor of the plaintiff for $497.

<p>Wbit of Ebbob to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding.</p>

<p>1. Practice—proforma order overruling motion for new trial. The practice of overruling a motion for a new trial proforma is new, and should not be encouraged. In the future this court will refuse to act on such orders.</p> <p>2. Master ahd servant—liability of clerk for money loaned, by Mm. A cashier or clerk of a railway company who has charge of its moneys, is under a legal liability to the company to take care of and preserve its funds so intrusted to him, and if he loans the company’s money to a</p> <p>fellow servant without the order or direction of any one having the right to give such order, he will be liable personally to the company for the same, and if he pays the same he can not recover it back.</p> <p>3. Duress—opinion of criminal liability. Where a party is induced to pay money to his employer to make up a deficiency in moneys intrusted to him as clerk, and his brothers, after examining the books, advise him that he is liable to a criminal prosecution, and another servant or employee of the same master gives him the same opinion, and advises a settlement, but makes no threat of a prosecution, it can not be said that the money is paid under duress.</p> <p>4. Evidence—party’s own letters. In a suit by an employee of a railway company, to recover back money paid by him to the company, letters written by the plaintiff to the officers of the company are not admissible as evidence in his favor.</p>

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

Weit op Ebbob to the Circuit Court of Washington county; the Hon. Amos Watts, Judge, presiding. This action was brought on two promissory notes, made by the firm óf It. Wintker & Co. to Adam Holtgreve, one dated Hay 22, 1873, for $6000, and the other dated June 15, 1874, for $2490, both due when suit was brought. The declaration contains special counts on these notes, and also the common counts.

<p>1. Recording law—destruction of record does not affect notice. Where a mortgagee places his mortgage on record, his rights under it are fixed, and it is notice for all time, notwithstanding the destruction of the record, and the mortgage may be enforced against a subsequent purchaser from the mortgagor, although he had no actual knowledge of the mortgage.</p> <p>2. Same—subsequent purchaser from mortgagor—representations by the latter—possession by mortgagor. The fact that the mortgagor, when selling the mortgaged property, informed the purchaser that the title was perfect and subject to no incumbrance, will not change the rule or affect the rights of the mortgagee, who had no knowledge of such representations, nor will the fact that the mortgagor remained in possession of the premises, and paid the taxes thereon, that not being inconsistent with the lien created by the mortgage.</p>

<p>■*" triae—finding by the court Where matters of fact are submit-to the court without a jury, the finding of the court must have the same force and effect as the verdict of a j ury.</p> <p>2. Bill of exceptions—presumption to sustain judgment. Where the bill of exceptions does not purport to contain all the evidence, it will be presumed there was enough to sustain the finding of the court, and the judgment will not be disturbed where no exception is taken to the finding of the court, or any motion made for a new trial.</p> <p>3. Assignment fob benefit of creditors—its fairness. Where an assignment is made by a debtor for the benefit of his creditors, generally, without any preference, or indications of fraudulent intent, a few days before the recovery of judgment against him, it will be sustained, and pass the title to the assignee, and he may maintain replevin for the same as against the sheriff levying an execution upon the same.</p> <p>4. Same—fairness of, a question of fact. The question of fairness in an assignment for the benefit of creditors, is one of fact, for the finding of a jury, and their finding, where the question is fairly submitted, will not be disturbed'.</p>

Amos Watts, Judge, presiding. This suit was commenced by Minor Allen and Theodore Phillips against James M. Gregson, before a justice of the peace, in replevin, to recover possession of two stacks of wheat. .From the judgment rendered against him by the justice of the peace, defendant prayed an appeal, and perfected it by giving the usual bond.

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

<p>This was an application for a mandamus in this court.</p>

<p>1. Witness—impeachment by proof of contrary statements. The rule is inflexible, that a witness can not be impeached by proof of his having made contradictory statements out of court, unless his attention has been directed, in his examination, to such statements, specifying particularly the time and place.</p> <p>2. G-amxng—action to recover thing lost. In trover to recover the value of a mare lost on a wager upon a horse race, it is error in an instruction to make the plaintiff'’s right to recover depend upon the fact that the animal was taken against the will and protest of the plaintiff. The action lies, although the plaintiff may have voluntarily given possession.</p>

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

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

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

<p>1. Bill op exceptions—evidence must be preserved., to enable this court to pass on instructions. Where the bill of exceptions does not contain any portion of the evidence given on the trial, this court can not decide whether there was error in giving or refusing instructions.</p> <p>2. If a party desires the instructions to be passed upon by this court when no question is made on the evidence, he should at least state in his bill of exceptions that the testimony established certain facts, or that the evidence tended to prove certain facts. The bill of exceptions should contain enough of the facts to show the materiality or application of the instructions asked for.</p>

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

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

Clair county; the Hon. William H. Snyder, Judge, presiding. This suit was brought by Joseph Dcerle, by his next friend, Herman Doerle, against John Gohn, Ferdinand Heim and Michael Heim, to recover for personal injuries to plaintiff, while in their service. Defendants were engaged in the manufacturing of an ice box, called the “ Triumph Refrigerator,” and in their establishment they used and controlled a planing mill.

<p>1. Trusts—equity jurisdiction to carry out the purpose of the trust. Where property and funds are given by the State to a corporation, in trust, to carry out a certain object, a court of equity, having jurisdiction of trusts and trust property, may, in case of its waste or perversion, or on account of the inability or indisposition of the trustee to execute the trust, seize the property or fund, and place it in the hands of a trustee who will execute the trust.</p> <p>2. A court of equity has the power, and will, in a proper case, pursue a trust fund and restore it to its original purpose, into whosesoever hands it may come, unless held by innocent purchasers without notice. If disposed of, and the proceeds reinvested in other property, the trust will attach to the latter.</p> <p>3. Where it was shown, on a bill filed by the Attorney General on behalf of the State, that the Illinois Agricultural College had wasted and squandered the property donated to it by the State for the purpose of maintaining an agricultural college, and that the directors had shown themselves either unable or unwilling to discharge the trusts assumed, it was held, error to dismiss the bill seeking to take the property from the directors and to enforce the trust.</p> <p>4. Illinois Agricultural College—statute relating to, construed. The amendment to the charter of the Illinois Agricultural College, of February 12, 1807, providing that the directors shall be permitted to impart instruction in all the branches taught in similar institutions in any of the States, does not release them from the duty imposed in their charter of imparting knowledge of practical agriculture and the mechanic arts. It may enlarge their powers, but does not diminish them.</p> <p>6. Costs—against the State. It is error to decree that the State,shall pay the costs of a suit brought in its behalf, and it is equally so to decree costs against the Attorney General, in a suit brought in his official capacity on behalf of the State.</p>

<p>1. Garnishment—liability must be clear. It is the' doctrine of this court, that judgment shall not go against a garnishee except where a clear indebtedness is shown as existing at the time of the service of the garnishee process.</p> <p>3. Where a garnishee, in his answer, shows that prior suits are pending against him in which his indebtedness to the defendant in attachment is involved, so that it is impossible for him to state what amount, if anything,</p> <p>he may owe when the prior litigation is adjusted, and no issue is taken upon the answer, it is error to render judgment against the garnishee.</p> <p>3. Same—liability on answer. Where no issue is made up on the answer of a garnishee, unless it clearly makes him chargeable, he should be discharged.</p>

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

James C. Allen, Judge, presiding. This was an action of assumpsit, by the appellee against the appellant, upon a promissory note, commenced by summons in the ordinary way.

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

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

<p>Writ of Error to the Circuit Court of Union county; the Hon. Horros C. Crawford, Judge, presiding.</p>

<p>1. Bill to quiet title—by holder of tax title. If the holder of a tax title can maintain a bill to quiet title, it can only be done by his showing that all the requirements of the Revenue law in imposing the tax, in advertising the land for sale, in rendering the judgment, in conducting the sale, in giving notice of the sale, and in filing affidavit of service of the notice or publication, and the execution of the deed, have been complied with, if not strictly, at least substantially.</p> <p>2. Where a bill to quiet title was based upon a tax title and limitation, and it failed to show affirmatively the proceedings, so that it might he seen whether the title was a good one or not, and failed to show when possession of the land and payment of taxes under the title commenced, or how it was continued, but charged generally possession and payment of taxes for seven years, it was held, that the bill made no case of which a court of equity could take jurisdiction.</p>

<p>1. Indorser — character of liability. Where the payee of a promissory note indorses his name thereon, his liability will be that of indorser, and not an absolute liability as a maker, and proof that, at the time of indorsing, he said he would make the note good, does not change his liability.</p> <p>2. Where the amount of a promissory note could have been made of the maker, at its maturity, by proper legal measures being taken, the indorser will not be liable to the holder.</p>

<p>1. Insurance—whether answers are a warranty. "Where a statement, including questions and answers, in an application for insurance, concluded, “ it is hereby declared that the above are true and fair answers to the foregoing questions, in which there are no misrepresentations or suppression of known facts, and I acknowledge and agree that the above statement shall form the basis of the agreement with the society,” the answers will not be held to constitute a warranty of their truth, but are mere representations, and if made in good faith, without any intention to deceive, the fact they are not true will not avoid the policy. It is only known facts that are not to be misrepresented.</p> <p>3. Same—statement as to serious illness construed. A statement in an application for life insurance, that the applicant has had no serious illness, will be construed to mean that the applicant has never been so seriously ill as to permanently impair his constitution, and render the risk unusually hazardous.</p> <p>3. Same—representation as to appearance. A representation that the applicant had a florid appearance, when, in fact, he was pale and emaciated, will not, of itself, avoid a life policy of insurance; such appearance is no certain indication of disease or feebleness, and would not necessarily cause the insurer to refuse the risk.</p>

<p>Appeal from the Circuit Court of Saline county.</p> <p>This was a bill in chancery, filed by the appellee, against the appellant, to foreclose a mortgage.</p>

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

Monroe C. Crawford, Judge, presiding. This was a proceeding, commenced by Willis Cauble, tó establish a lien in his favor against the Cairo and St. Louis Bailroad Company, as sub-contractor under H. E. Payson & Co., for'materials furnished to that firm, who were principal contractors for constructing that company’s railroad, under the provisions of the statute giving a lien in such cases.

<p>1. Injunction by State court—receiver appointed by Federal court. Where an injunction is granted by a State court, and served on a railway company, restraining it and its servants from obstructing a public avenue in a city with its trains, etc., the same will be binding upon a receiver of the company subsequently appointed by the United States court, and such receiver, the same as a subsequent purchaser, will be punishable for contempt for disobeying the mandate of the writ.</p> <p>2. Same—punishment after removal from office. If the receivers of a corporation disobey an injunctionagainst the corporation, made before their appointment, the fact that they have been removed at the time they are tried for a contempt, affords no defense whatever.</p> <p>3. Same—as to receiver not actively participating. Where a railway company passes into the hands of receivers after it and its servants and agents are enjoined from obstructing a certain avenue, etc., with its cars, and in managing its business the injunction is disobeyed, one of the receivers can not be exonerated because he took no active part in the matters complained of. It is his duty to see that the injunction is obeyed.</p> <p>4. Receiver—of railroad, company as its agent. A receiver of a railway company appointed by the court to manage its business, is legally the agent of the company, although under the direction of the court appointing him.</p> <p>5. Same—powers. The court, in appointing a receiver for a corporation, has no power to enlarge or restrict the corporate powers and duties conferred on the corporation by its charter. The receiver is bound by the charter to the same extent as the directory. If the company is under a legal duty to perform or not to do a certain act, the same will devolve upon its receiver.</p>

Tazewell B. Tanner, Judge, presiding. This was an action of assumpsit, by the appellee, against the appellant, upon an award made under seal. The plaintiff recovered judgment, and the defendant appealed.

<p>1. Right of way—condemnation after road, is built. Where a condemnation of land for a railroad and the assessment of damages were set aside, by consent, for the purpose of making a new one of the land actually taken, and the land owner allowed to retain the compensation paid on the original assessment, to be applied on the second, and the court instructed the jury that the land owner was entitled to the value of the land sought to be condemned, with the improvements put thereon, and it did not appear but the jury followed the instructions in the assessment, this court, without deciding whether the law was stated correctly, refused to disturb the assessment, on appeal by the land owner.</p> <p>2. Same—-jury may act on their own conclusion from, actual view. In the assessment of damages for right of way, under the statute, the jury have the right to view the premises, and draw their own conclusions from such observations, as well as from the testimony offered in the case.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. John Gr. Sogers, Judge, presiding. This was a proceeding to condemn property, and assess the damages occasioned thereby, for the widening of a certain street in the village of Hyde Park. Dunham, whose property was affected by the proceeding, prosecutes this writ of error.

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

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

<p>Contract—lease construed. Where a landlord leased a farm for five years, if not sold, reserving an annual rent, payable in two equal payments during each year, and the lease provided that if the landlord sold the premises to any third party, he should pay reasonable damages to the tenant, who was to give possession to plow, and haul manure, etc, as soon as his crops were gathered, it was held, that two modes were provided for terminating the term,—by lapse of time, and by sale of the premises by the landlord to a third person, and that the “reasonable damages” he was to pay in the latter event, meant in case the tenancy was terminated before the end of any one year; and also that when it was so terminated at the end of a year, the tenant was not entitled to recover any damages whatever.</p>

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

<p>1. Measure of damages—depriving party of use of land. Where land is wrongfully overflowed so as to deprive the owner of its use, the true measure of damages is, its fair rental value. The supposed value of what might have been raised on the same had it been cultivated, less the cost of cultivation and marketing, is too remote ard speculative.</p> <p>2. Former decision. The rule as to the measure of damages announced in The Chicago and. Rock Island R. R. Co. v. Ward, 16 Ill. 522, has not been followed in subsequent cases. In that case the crop on the land was planted and partly matured when destroyed, and it has no application to a case where no crop was ever planted.</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 Knox county; the Hon. Arthur A. Smith, Judge, presiding.</p>

<p>1. Pleadings—written, not required on appeal from refusal to allow claim against estate. The statute does not require written pleadings where a claim is presented for allowance against an estate in the county court, and none are necessary on appeal from the judgment of that court, the trial being de novo.</p> <p>2. Evidence —financial condition of party. On the question of the genuineness of a promissory note presented as a claim against an estate, made many years before, evidence of the financial condition of the payee and holder of the note, at the date of the note and subsequently, is admissible in evidence on the part of the defense.</p> <p>3. Same—pecuniary condition of supposed malcer of note. On an issue as to the fact of indebtedness of an intestate upon a promissory note outstanding a period of seventeen years, filed against his estate, the genuineness of which is disputed, it is competent for the defense to show in evidence that, from the date it purports to have been given down to the death of the deceased, he was prompt to pay his debts, was prudent, careful, credit good, was a man of large property, and did not like to be in debt, and that the payee, his son, was so pressed by his creditors, before the maker’s death, as to take refuge in bankruptcy.</p> <p>4. Same—res gestes. Where the payee of a note testified to the payment of money credited on the same, in support of its genuineness, which was disputed, and that the payment was made at a particular time and place, it was held, competent, in rebuttal, to prove, by other witnesses present at the time and place, that no money was paid by the maker, and also what was said and done at that time and place, as a part of the res gestee, but not what was said the previous night.</p> <p>5. Same—to show note not genuine. Where the genuineness of a promissory note, purporting to be from a father to his son, is disputed, evidence that the father signed his name in blank on a piece of paper to enable the son to raise money about the date of the supposed note, and which was never returned, is proper to go to the jury, whose province it is to say whether such signature was the one to the note in dispute.</p> <p>6. In a suit upon a note, against the estate of the maker, where the genuineness of the note is disputed by the heirs, it is competent for the heirs to give in evidence the execution of notes secured by mortgage given by the payee to the maker, who was the payee’s father, subsequent to the date of the note in suit, and the payment of money, from time to time, by</p> <p>the son to the father, as establishing the improbability that during all such-time he held a large note against his father.</p> <p>7. Same—admissions of payee of note. Any declarations made by the payee of a promissory note, while owning the same, are proper evidence against a subsequent holder by delivery merely, but after sale and delivery, in good faith, any such declarations are not admissible except as impeaching testimony, where a proper foundation has been laid.</p> <p>8. Attorney—witness—privileged communication. Pacts obtained by one as an attorney at law, during negotiations, as to the amount of pay he should receive for his services to prosecute a suit, which resulted in no-employment, for want of agreeing upon the fee to be paid, are privileged and inadmissible in evidence. Pacts and circumstances communicated to an attorney or solicitor, when he is called upon, and acting as a legal adviser, are privileged.</p> <p>9. Instruction—should not he a mere argument. It is erroneous to give an instruction which is more in the nature of an argument to the jury than a statement of the law governing the case—-giving undue prominence to facts relied upon, and reciting facts having no tendency to support the theory presented.</p>

<p>Guardian and ward—ward's estate not liable for moneys borrowed by his guardian. Whei'e a guardian, being also agent for another and having moneys of his principal in his hands, applied to the latter for a loan of money on behalf of his ward, agreeing to execute a mortgage on the ward’s estate, and procuring an order of court for that purpose, and it appeared that no money was in fact ever paid over to the guardian, who gave a note for the sum as guardian, but failed to execute a mortgage to secure the same, and the money was never expended upon the person of the ward or upon his estate, it was held, that the creditor could not, in equity, have a lien on the real estate of the ward for the payment of the note so given by the guardian.</p>