Volume 88 — Illinois Reports

<p>Appeal from the Circuit Court of Marshall county; the Hon. John Burns, Judge, presiding.</p> <p>This was an action of assumpsit, by appellant, as assignee of the Hamilton, Lacón and Eastern Railroad Company, against appellee, upon a certain bond executed and delivered by appellee to said railroad company, as follows:</p> <p>“$1000. No. 17.</p> <p>“ United States of America, State of Illinois, County of Marshall, Town of Roberts:</p> <p>“ Know all men by these presents, that the town of Roberts,, in the county of Marshall and State of Illinois, is indebted to the Hamilton, Lacon and Eastern Railroad Company, or bearer, in the sum of $1000, lawful money of the United States, which the said town of Roberts promises to -pay to said Hamilton, Lacon and Eastern Railroad Company, or to the bearer hereof, on the 7th day of April, in the year 1876, at the office of the treasurer of the county of Marshall, aforesaid, in the town of Lacon, Illinois, on the presentation of this bond, with interest thereon from the 7th day of April, A. D. 1871, at the rate of ten per centum per annum, payable, annually, at the office of the treasurer of the county of Marshall, aforesaid, on the 7th day of April in each year, on the presentation and surrender of the annexed coupons, as they severally become due.</p> <p>“ This bond is one of a series, amounting, in the aggregate, to $30,000, and consisting of thirty bonds, numbered from one to thirty, inclusive, each of which is for $1000, and all of which are of even date, and are issued, in accordance with the laws of the State of Illinois, in payment of a subscription made by said town of Roberts for 300 shares of the capital stock of the Hamilton, Lacon and Eastern Railroad Company, which said subscription was made by said town by virtue of a vote of a majority of the voters of said town in favor thereof, at a special election held for such purpose in said town on the 25th day of March, A. D. 1869, in pursuance of the laws of the State of Illinois, and the several acts of the General Assembly incorporating said railroad company.</p> <p>“ In witness whereof the supervisor of said town of Roberts has signed this bond, and the clerk of said town has attested the same, and on this 7th day of April, in the year 1871.</p> <p>John Norton,</p> <p>Supervisor of the Town of Roberts, Marshall Co., State of Illinois.</p> <p>“Attest: Joseph Maleham,</p> <p>Clerk of the Town of Roberts, Marshall Co., State of Illinois.</p> <p>“ Indorsement: This bond is issued by the town of Roberts, on the 7th day of April, A. D. 1871, and duly recorded by me according to law.</p> <p>Joseph Maleham,</p> <p>Cleric of the Town of Roberts.”</p> <p>The following is a copy of the coupon attached to foregoing bond:</p> <p>“Town of Roberts, county of Marshall, State of Illinois, will pay to the bearer $100, at the office of the county treasurer in the town of Lacon, on the 7th day of April, 1876, interest on bond Ho. 17, issued by said town in payment of subscription to the capital stock of the Hamilton, Lacon and Eastern Railroad Company.</p> <p>John Norton,</p> <p>Supervisor of the Town of Roberts.</p> <p>Joseph Maleham,</p> <p>Clerk of the Town of Roberts.</p> <p>“Indorsement: Filed September 21, 1871.</p> <p>(Signed) James Westcott, Clerk.”</p> <p>The declaration avers the indorsement of the bond to appellant, on the day it bears date, by the Hamilton, Lacon and Eastern Railroad Company, and contains the other necessary averments to charge appellee with its payment.</p> <p>Appellee pleaded two pleas, as follows:</p> <p>“ 1st. And now the defendant comes and defends the wrong and injury when, etc., and says actio non, because it says that the said election set forth and recited in said bond was held contrary to and in violation of law, in this: that the said election was called by the town clerk of said town without any application having been filed therefor, as required by an act of the General Assembly of said State, in force March 5, 1869, entitled ‘An act to authorize the incorporated towns of LaSalle and Marshall and Livingston counties to subscribe to the capital stock of the Hamilton, Lacon and Eastern Railroad Company but the same was called by said clerk under and by virtue and in pursuance of a certain application, in writing, filed in his office on the 18th day of February, A. D. 1869, which application was, in fact and figures, as follows, to-wit:</p> <p>“‘To the Township Clerh of the Township of Roberts, County of Marshall and State of Illinois:</p> <p>“‘ C. Broaddus, Hiram Myers, (justice of the peace and supervisor,) and twelve freeholders of the said township, deeming it necessary that a special township meeting be held in said township, for the purpose of allowing the legal voters of said township to vote upon the question as to whether or not said township shall subscribe $30,000 to the capital stock of the Hamilton, Lacon and Eastern Railroad Company, and issue the bonds of said township therefor, payable one-third in three years, one-third in five years, and one-third in eight years from this date, with ten per cent interest thereon per annum, payable annually, for the purpose of building a Railroad from the city of Lacon, on the grade of the American railroad, through said town of Roberts, to connect with the Chicago, Alton and St. Louis railroad in said State, to be signed by the supervisor and countersigned by the clerk of said township, as follows, to-wit: when the track of said Hamilton, Lacon and Eastern railroad shall have been graded, ties laid and the iron thereon, and the said railroad completed and the cars running in said town of Roberts, together with a side track and depot, built within one-half or three-fourths of a mile of the geographical center of said town of Roberts, on the line of said railroad, then the sum of $30,000, or so much of said sum as may be necessary for the completion of the said railroad, of said bonds, shall be. issued as aforesaid,—we therefore ask you to call a meeting of said township, for the pur- ' pose of voting upon the question of subscribing said stock, as aforesaid, as soon as you can conveniently do so.</p> <p>“‘James Hoyt, George W. Walker,</p> <p>“‘Jacob Salter, William B. Green,</p> <p>“ ‘ John Norton, J. R. Show,</p> <p>“ ‘ Abraham Delong, Livingston Roberts,</p> <p>“‘Joseph Malone, J. J. Myers,</p> <p>“ ‘ D. H. Maleham, James B. Davis.'</p> <p>“And the defendant in fact says, that the said application remaining on file in the office of the town clerk on the 15th day of March, A. D. 1869, said clerk called said election in pretended pursuance of said application, and on the said day posted written notices of such election in three of the most conspicuous places in said town, which notices, so posted, were in letters, words and figures, as follows:</p> <p>“‘Special Town Meeting.—Whereas, the supervisor and justice of the peace, with twelve freeholders, of the town of Roberts, having, in writing, filed in my office a statement that a special town meeting is necessary to the interest of said town, setting forth the object of the meeting, the inhabitants, legal voters of the said town of Roberts, are therefore hereby notified that a special town meeting will be held at the town hall on Thursday, the 25th day of March, 1869. The polls will be open at 9 o’clock in the forenoon, and close at 6 o’clock in the afternoon, for the purposes following, to-wit: For the purpose of allowing the legal voters of said town to vote upon the question as to whether or not said township shall subscribe $30,000 to the capital stock of the Hamilton, Lacon and Eastern Railroad Company, and issue the bonds of said township therefor, payable one-third in three years, one-third in five years, and one-third in eight years from this date, with ten per cent interest thereon per annum, payable annually, for the purpose of building a railroad from the city of Lacon, on the old grade of the American Central railroad, through said town of Roberts, to connect with the Chicago, Alton and St. Louis railroad, in said State, said bonds to be signed by the supervisor and countersigned by the cleric of said town, as follows, to-wit: when the track of said Hamilton, Lacon and Eastern railroad shall have been graded, ties laid and the iron laid thereon, and the said railroad completed and the cars running in said town of Roberts, together with a side track and depot, built within one-half or three-quarters of a mile of the geographical center of the town of Roberts, on the line of said railroad, then the sum of $30,000, or so much of said sum as may be necessary for the completion of said railroad, of said bonds, shall be issued as aforesaid, being the object contained in said statement filed in my office this 8th day of February, 1869.</p> <p>“ ‘ Given under my hand, at Roberts, this 15th day of March, 1869.</p> <p>“ ‘ H. Statler, Town Clerk’</p> <p>“ And said election, mentioned in plaintiff’s declaration and the bond described therein, was held in pursuance of said application and notice, and by virtue of no other authority, application or notice whatever; and the notice thereof given was not for the length of time required by said law, being only ten days’ notice, nor was the said election called or held in pursuance, nor in pretended pursuance, of said act, whereof the defendant says that the said election, as held, was unlawful and void, called without authority, and conferred no authority on the supervisor and town clerk of said town, nor upon either of them, to make the subscription of stock mentioned in the said declaration, nor to issue the bonds and coupons in payment thereof, in manner and form as in said declaration stated, wherefore the defendant in fact saith, that the said bonds and coupons were made and issued by the said supervisor and town clerk of said town without authority of law, and are void; and defendant further, in fact, says, that the said application and notice have ever since remained of record in the town clerk’s office of said town, among the public records of said town, and said election was also attached to and formed a part of the written contract of subscription made by the supervisor of said town on the subscription book of the said railroad company—all of which the plaintiff, prior to his alleged purchase of said bonds, had constructive notice, to-wit: on the 7th day of April, 1871, at, etc. And defendant further, in fact, saith, that at said election the votes cast for said subscription were not a majority of all the votes of said town, being about one-third of the legal votes of said town, but were a majority of all the votes cast at said pretended election. All of which defendant is ready to verify, whereof it prays judgment, etc.</p> <p>“ 2d. And for further plea in this behalf to said plaintiff’s declaration, defendant says actio non-, because it says, that at the said election, mentioned in said declaration and bond attached thereto, it was voted, as specified in the notice thereof, to subscribe the said stock to the said railroad company, for the purpose of building a railroad from the. city of Lacon, on the old grade of the American Central railroad, through said town of Roberts, to connect with the Chicago and Alton railroad, in said State, a distance of fifty-one miles, said railroad being named in said notice as the 'Chicago, Alton and St. Louis railroad,’ said bonds to be issued when the track of the Hamilton, Lacon and Eastern Railroad Company shall have been graded, ties laid, the iron thereon, and the railroad completed and the cars running in said town, together with side track and depot building,• within one-half or three-quarters of a mile from the geographical center, on the line of said American Central railroad, then the bonds, or so much thereof as may be necessary, to be issued, the said purpose and condition being stated in the notice of said election. And defendant in fact says, that afterwards, to-wit: on the 31st day of March, A. D-. 1869, and by virtue of said election, and of no other authority whatever, the supervisor of said town, upon the books of the Hamilton, Lacon and Eastern Railroad Company, subscribed for 300 shares, of $100 each, of the capital stock of the Hamilton, Lacon and Eastern Railroad Company, to aid in the construction of the said railroad from Lacon to the Illinois Central railroad. And defendant in fact saith, that the said supervisor, in making said subscription, did not pursue the authority vested in him by said election, even if said election had been legal and valid, and the said subscription was not in fact made to or used in building the Hamilton, Lacon and Eastern railroad from the city of Lacon, on the grade of the American Central railroad, through said town, to connect with the Chicago and Alton railroad, named the Chicago, Alton and St. Louis railroad in said notice, but, on the contrary, said subscription was made to aid in the construction of the said Hamilton, Lacon and Eastern railroad from Lacon eastward to the Illinois Central railroad, and the said subscription was, in fact, used in building a railroad from Lacon sixteen miles, to connect with the Chicago, Jacksonville and St. Louis railroad. And defendant in fact saith, that said subscription as made, and the enterprise in which the same was expended, were each a different enterprise, substantially and fundamentally, from the enterprise voted for, as specified in said election notice, and not so beneficial to defendant. And defendant in fact saith, that true it is that the General Assembly of said State of Illinois did pass an act entitled An act supplemental to certain acts of the General Assembly relating to the Hamilton, Lacon and Eastern Railroad Company, and to legalize the organization of said company, and to confirm the subscription to the capital stock thereof/ approved April 17, 1869, which said pretended act declares that said subscription is thereby made valid and binding, according to the terms thereof, and authorizes the supervisor of said town, of Roberts to issue, in due form, bonds of the said township for the payment of the amount of stock subscribed, according to the terms of the subscription; but defendant in fact saith, that said pretended act of the General Assembly, in so far as it attempts to legalize said subscription, is in violation of the constitution of the State of Illinois at that time in force, and to that extent is and was null and void, wherefore defendant in fact saith, said subscription and the issuance of said bonds in payment thereof were without authority of law and void, and the said bond and coupon are null and void. All of which the defendant is ready to verify, wherefore it prays judgment.”</p> <p>Appellant demurred, jointly and severally, to these pleas, and the court overruled the demurrer, whereupon, appellant electing to abide by his demurrer, judgment was .rendered, in favor of appellee.</p>

C. B. Smith, Judge, presiding. This was an action of ejectment, brought by the appellee, against the appellant. Both parties claimed title through successive mortgages, given to them by David Morgan, and a foreclosure of the same. The plaintiff's mortgage ivas the oldest, and first foreclosed, but the junior mortgagee was not made a party to the bill to foreclose.

Writ of Error to the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.

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

<p>1. Exemption—as against judgment for purchase money. Under the act in force July 1, 1873, personal property otherwise exempt from levy and sale on execution, is not liable to be taken on execution issued upon a judgment for a debt incurred for its purchase.</p> <p>2. Same—statute construed. The third section of the act relating to exemptions, in force July 1, 1873, which declares that no property under that act shall be exempt from sale for a debt or liability incurred in the purchase or improvement thereof, has no application to personal property, but relates solely to real property.</p>

<p>Practice—objection to form of referee's report—at what time to be made. Where exceptions to the report of <a referee are taken before the referee, merely technical objections to the form of the report, which are omitted to be made before the referee, will be regarded as waived.</p>

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

<p>Garnishment—answer denying indebtedness must be disproved. Where a garnishee answers, denying his indebtedness to the defendant in attachment, if i he answer is not disproved he should be discharged.</p>

This was an application in this court by the Chicago, Pekin and Southwestern Railroad Company, for a mandamus against the town of Clayton, in Woodford county, to compél the supervisor and town clerk thereof to issue to the relator $20,-000 of the bonds of said town.

<p>1. Trust—when it arises, and liability thereunder. Where one accepts notes of another in trust to pay such person's debt, and agrees with the creditor to either turn over the notes to him or when collected to pay him the money, and enters upon the performance of the undertaking, there will arise an obligation on his part to execute the trust faithfully, and an action lies in favor of the creditor for a failure to do so. He makes himself a trustee for the creditor, even though he receives no compensation.</p> <p>2. Limitation—in case of trust. The Statute of Limitations can not be set up against the enforcement of a trust, or to an action for its violation. Even if it applied to such a case, it would not begin to run until the trust was denied.</p> <p>3. Statute of Frauds—promise to pay debt of another. Where a person receives property, and in consideration thereof agrees to pay a debt of the party delivering the same to him to a third person, the promise will not be within the Statute of Frauds.</p>

<p>1. Evidence—entry in bank-book, of deposit. A party’s bank-book showed two deposits, of precisely the same amount, on the same day, but it appeared the entries in such book were not made at the time of the transaction, but afterwards, from the ledger-book of the bank, and it was held,, that the party’s bank-book could not be regarded as controlling evidence that both sums were, in fact, deposited, but it might be shown that the entry was a mistake.</p> <p>2. Bank—right to recover for money drawn in excess of deposits. Where, by mistake, a double entry is made on a bank-ledger of a deposit made on one day, and such mistake is copied into the depositor’s bank-book, and he draws out the whole sum thus shown to his credit, and in excess of what he, in fact, has deposited, the bank, on establishing and explaining the mistake, may recover back the excess so drawn out by the depositor.</p> <p>3. Instruction—should not be contradictory. Where the real question was, whether a bank had given a depositor credit twice for the same deposit, and it appeared the depositor had checked out all so credited to him, and the court, in a suit by the bank to recover for the amount drawn out in excess of the actual deposit, instructed the jury that, if such were the facts, the bank could not recover, if they believed, from the evidence, that such double credit did not, in fact, give the defendant credit for more money than he really had in the bank, and there was nothing due the bank, the instruction was held to be contradictory, calculated to mislead the jury, and therefore erroneous.</p>

<p>Process — sufficiency of return of service by copy. A return to a chancery summons against A and B, husband and wife, that the officer had served it by reading to A, the husband, and delivering to him a true copy of the writ, and also “ by leaving with him at her usual abode a true copy of this writ, for B, his wife, she being over ten years old, and explaining the same to him,” is defective, as to the wife, and a default and decree as to her on such return are ' not warranted.</p>

This was an action of replevin, by appellee against appellant.

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

This was an action of ejectment, brought in the McLean circuit court by Frederick Hendryx against Henry C. Dickerson, Robert Lowry and Charles Craig, for the recovery of the north-west quarter of section 20, in township 23 north, range 4 east of the third principal meridian.

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

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

Writ OF Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding. This was an information in the nature of a quo warranto, against George W. Wall, to show by what authority he exercised the office of circuit judge.

<p>1. Chattel mortgage—-failure to take possession at time limited. If mortgaged chattel property is suffered to remain in the possession of the mortgagee beyond the time limited in the mortgage for his possession, it renders the mortgage fraudulent and void as to execution creditors of the mortgagor.</p> <p>2. Same—construed as to right of possession, as between mortgagor and mortgagee. A chattel mortgage, given to indemnify a surety, provided in the condition that, if the mortgagor should pay the note executed by him and the mortgagee to the payee by a day named, or pay whatever the surety might be obliged to pay, with interest, and if, in other respects, he should keep the surety harmless, etc., the same should become void, and that the mortgagor might retain possession of the chattels “until the day of payment, as aforesaid,” and “ at the expiration of said time of payment,” if the note was not paid, etc., he should deliver possession: Held, that the mortgagor was only entitled to retain possession until the day named for payment in the condition, and if retained after that time the property was liable to be taken on execution against him. Such a mortgage does not give the mortgagor the right to hold possession until the mortgagee is damnified as surety.</p> <p>3. Same—provision as to holding possession against mortgagee who is only surely. A chattel mortgage given to a surety of the mortgagor upon a note, may well provide that on failure of the mortgagor to pay the note at maturity, the mortgagee, without having suffered anything from his suretyship, may immediately take possession of the property, and appropriate it to the payment of the note, and if it does so provide, possession must be taken accordingly, or the property becomes liable to execution against the mortgagor.</p>

<p>Negligence—proof must show. Where the record fails to show that an accident on a railway train, resulting in the death of the plaintiffs intestate, was the result of any negligence or fault on the part of the company, in any respect, a judgment in favor of the plaintiff will be reversed.</p>

<p>1. Execution—mortgagor’s interest may be sold under execution in favor of mortgagee. In tins State, the mortgagor’s equity of redemption in the mortgaged premises may be sold on execution issued on a judgment at law, in favor of the mortgagee, for the mortgage debt. At common law, the rule seems to have been different. By that system, the, equity of redemption could be cut off only by foreclosure in equity.</p> <p>2. Same—when sale of mortgagor’s interest operates as a foreclosure. A sale under an execution, on a judgment for the debt secured by a mortgage, operates as a foreclosure of the mortgage, with the same rights of redemption to the debtor and creditors as on a sale under a decree of foreclosure. By such sale and sheriff’s deed to the mortgagee, he acquires the equity of redemption, which, united with his estate under the mortgage, gives him the absolute title.</p> <p>3. Same—issued, for first time, after one year. If a judgment creditor sue out an execution on his judgment, for the first time, after the expiration of one year, and sell, the sale will be good and the title pass, unless the judgment debtor takes timely steps to set the sale aside. His failing to do so is an implied admission that the judgment was not satisfied, and the sale was rightfully made.* </p> <p>4. Sheriff’s deed—made over seven years after judgment became a lien. A sheriff’s deed for land sold under execution, made eight years and three months after the judgment became a lien on the land, is not void as against the heirs of the judgment debtor, who take as mere volunteers. This case is to be distinguished from those of Rucker v. Dooley, 49 Ill. 377, and Hannan v. Larned, 58 id. 167, holding such deed inoperative to pass the title as against bona fide purchasers from the judgment debtor. It was not said, nor intended to be said, in those cases, that a deed made after the expiration of seven years would be void as to the judgment debtor, or those claiming under him as volunteers.</p> <p>5. Judgment—revivor of lien when lost by not suing out execution. A judgment creditor may revive his judgment, after his lien has expired from not suing out an execution within one year, against the judgment debtor, but can not thereby affect the rights of an intermediate bona fide purchaser.</p> <p>6. Practice—when specific objection must be made. If a judgment, introduced in evidence in support of an execution and sheriff's deed, has no piadla, showing in what court it was rendered, it must be objected to specifically, on this account, in the court below, to afford an opportunity to obviate the defect, or the objection can not prevail in this court.</p> <p>7. Tax title—judgment and precept necessary. A tax deed for land, without introducing in evidence the judgment and precept for the sale, show's no title. A valid judgment and precept are indispensable to show a transfer of title by a tax deed.</p>

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

<p>1. Certiorari—not a writ of right. The common law writ of certiorari, , used for the purpose of correcting the proceedings of inferior tribunals, is not a writ of right, but it issues only upon application to the court upon special cause shown; and when great public detriment or inconvenience may result from interfering with their proceedings, the writ should be denied.</p> <p>2. Same—not allowed after unreasonable delay. ■ A writ of certiorari, to review the action of trustees of schools in detaching territory from a school district and adding it. to another, ought not to be granted after the lapse of three years, and if granted should be quashed for laches in presenting the petition.</p> <p>3. Same—discretion to grant writ. The discretion in the circuit court to grant the writ of certiorari will not extend to a case where, by law, it clearly ought not to be granted. The discretion is not an arbitrary one, but one to be exercised in subordination to legal principles, and when not, its exercise may be reviewed in this court.</p> <p>4. Appeal—when it lies to this court. The right of appeal from the circuit court to this court is given by statute from all final judgments. It lies from the final judgment of the circuit court on a certiorari at common law.</p>

<p>1. Change op venue—sufficiency of affidavit. An affidavit in support of a motion for a change of venue, by one indicted for a misdemeanor, which stated that the presiding judge was prejudiced against him, so that he could not expect a fair and impartial trial, and that, a full knowledge of that fact did not come to Mm until the day the petition was presented, is entirely ■ insufficient, as the party may have had knowledge before then sufficient to satisfy his mind of the prejudice.</p> <p>2. Practice—party must except to refusal to continue. Unless an exception is taken to the refusal of the court to grant a continuance, the ruling below can not be reviewed by this court.</p> <p>3. Jury—charge of, by minor. Where the court, on convening, appoints one not twenty-one years old as bailiff for the term, and he is duly sworn to take charge of a jury in a criminal case, and does take such charge, he being an officer de facto, his acts will be valid so far as third persons and the public are concerned, and this will be no ground for a new trial.</p> <p>4. Bailiff—need, not be of age. There is no law in this State requiring a bailiff appointed by the court to be twenty-one years of age. A person twenty years old, or even less, may be fully competent to discharge the duties pertaining to that position.</p> <p>5. Criminal law—judgment on conviction under several counts. A judgment on a verdict finding the defendant guilty of selling intoxicating liquor without a license, under eight counts, that the defendant pay a fine to the people of $20, and be imprisoned ten days on each of the eight counts, and pay the costs, that execution issue for the fine and costs, and that the defendant stand committed until the fine and costs are paid, is correct in form.</p>

<p>1. Mortgage—removal of building. A mortgagor, while he has the right to use the mortgaged premises, has none to commit waste, or to remove buildings therefrom, or to do any other act impairing the security, and the removal of a house from the premises may be enjoined in equity.</p> <p>2. Same—right of mortgagee to replevy home taken from mortgaged premises. Where a house has been severed from mortgaged premises without the consent of the mortgagee, he may maintain replevin at any time before it becomes attached to and forms a part of other realty, and if the building is afterwards severed from the realty before his mortgage is satisfied or discharged, he may regain it by the action of replevin.</p> <p>3. Same—mortgageds right to damage for waste. Where a mortgagor in possession procures the removal of a building from the premises, without the consent or knowledge of the mortgagee, it seems that the person removing the same with a knowledge of the existence of the mortgage, as well as the mortgagor, is legally responsible in damages to the mortgagee.</p> <p>4. Replevin—of house attached to realty. Where a house is wrongfully removed from mortgaged premises, it may be that replevin will not lie, in favor of the mortgagee, for it, after it has been permanently attached to other real estate, but not because the mortgagee has losj. his title, or his right to recover damage for its removal, but for the sole reason that replevin is not the proper remedy to recover real property.</p>

Oliver L. Davis, Judge, presiding. This was an action of debt, brought by the village of Oakland, against Richard Moss, to recover for the breach of an ordinance to prohibit the sale of intoxicating liquor. The case originated before a justice of the peace, and was taken by appeal to the circuit court. On the trial, the plaintiff offered in evidence the ordinance of the village, with the following certificate thereto attached: “ State of Illinois, \ Coks County.

Writ of Error to the Circuit Court of Sangamon county; the Hon. Charles S. Zane, Judge, presiding. This was an action against the railroad company, to recover for a personal injury received by the plaintiff in coupling two cars upon the road of the defendant. The plaintiff recovered, and the defendant brings this writ of error. The circumstances of the injury were, that the plaintiff was employed as a switchman in the yard of the railroad company, at Springfield.

<p>1. Will—bequest to poor of county construed. A bequest of money “to the poor of” a certain county, is one to the poor of the county in a technical sense,— that is, those whom the county is under legal liability to support, and being such, the county board of the county has the right to the custody and control of the fund.</p> <p>2. County treasurer—extent of liability of his sureties. A county being liable for the support of its paupers, its board is exclusively interested in a fund dedicated or given to the poor of such county, and in its management and control, and this being so, it so far partakes of the nature of public revenue, as to make the county treasurer its proper custodian for the county, and his sureties will be liable if he fails to account for and pay over the same to his successor.</p> <p>3. Same—liability of sureties for refund tax. The refund tax paid by the State to the several counties, under the act in force March 26, 1875, entitled “ An act to declare and constitute the State of Illinois sole trustee of that portion of the State tax levied, assessed and collected for the year 1873 in excess of twenty-nine thirty-sixths thereof, and to provide exclusive remedies for the complete refunding of the same to the tax-payers of the State who have paid such excess, and for the protection of tax-payers entitled thereto, and of counties and all officers and persons connected with the collection, custody or payment thereof,” is essentially public revenue, appertaining to the office of county treasurer, and being so he and his sureties are amenable to the county for a faithful accounting of such fund, the same as any other public funds of which he is by law the custodian.</p> <p>4. Same—liability of sureties under subsequent law. The provision of the act of 1874, (R. S. ch. 36, sec. 4,) which provides that the county treasurer shall receive and safely keep the revenues and other public moneys of the county, and all moneys and funds authorized by law to be paid to him, and disburse the same pursuant to law, is a change the legislature had the clear right to make as against prior sureties of such officer. It must be held, that sureties signing the bond of public officers, do so in contemplation of a change in the law.</p>

This was an action of replevin, brought by John A. Koplin, against Christopher Anderson and George Campbell, to recover a lot of corn. Counts in trover were added. It appears one James Cayler, on June 1, 1876, gave the defendants a chattel mortgage on a crib of 2000 bushels of corn, and other property, to secure a debt of $1113.51, due in one year. No entry was made by the justice taking the acknowledgment, of the property, on his docket.

This was an action of trover, by Jonathan T. Rardin, against John Richardson, for the conversion of a lot of corn levied upon by the plaintiff, as constable, under an execution in favor of one Fredrick, and against Thomas D. Conn. A trial was had, resulting in a judgment in favor of the plaintiff for $122.79, and costs of suit.

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

<p>1. Animáis—owner’s liability for injury by them. The owner of domestic or other animals not naturally inclined to commit mischief, such as dogs, horses and oxen, is not liable for any injury committed by them to the person or personal property of another, unless it be shown such owner previously had notice of the animal’s mischievous propensity, or that the injury is attributable to some other neglect on his part, it being, in general, necessary, in an action for an injury committed by such animals, to allege and prove a scienter.</p> <p>2. Same—recovery for injury growing out of plaintiff’s negligence or fault. A party can not recover of the owner for an injury from such an animal if his own negligence contributed materially to it, or where the injury is wantonly provoked by his own wrongful act.</p> <p>3. Where the plaintiff’s sorrel stallion, while being exhibited on the street, some fifty or sixty feet from the defendant’s black stallion, commenced backing towards the black horse and kicking, and when he had come near, the latter horse turned and kicked him, breaking a leg, from which he died, and it appeared the defendant’s horse was kind and manageable, or that the defendant had no knowledge of any vicious propensity, and that Ms horse was in the hands of a prudent keeper, while the sorrel horse was vicious, and was not properly managed by the person in charge of him, it was held, that the defendant was not liable for the injury.</p>

O. T. Reeves, Judge, presiding. This was an action of trespass, by Elisha Barnabee against James W. Ramsey, to recover the penalty for the sale of exempt property under execution by the defendant, as constable. The defendant pleaded the general issue and a plea justifying the taking and sale of the property (a mower), as constable, under an execution against the plaintiff. The plaintiff replied, to the last plea, that the property was exempt from levy on execution.

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

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

<p>1. Laying out highway—revocation of proceedings. If commissioners of highways regard the damages assessed in favor of an owner over whose land a public road is laid out as manifestly too high, and that the payment of the same will be an unreasonable burden upon the tax-payers, they may revoke all proceedings had, by a written order to that effect; and such order will annul all proceedings, assessments, releases and agreements in respect to damages, and this may be done when the damages are agreed upon by the land owner and the supervisors on an appeal, and in such case the owner of the land can not enforce payment of the damages.</p> <p>2. Mandamus—to compel payment of damage for road. A petition for a mandamus to compel commissioners of highways to pay damages agreed upon between the petitioner and the supervisors, on an appeal growing out of the laying out of a road over his land, which fails to show that the commissioners had taken possession of the road or recognized it as a legally established highway, or that the order for the road had not been revoked, is fatally defective.</p> <p>3. A person applying for a writ of mandamus must show a clear right to the relief sought, and that he has no other adequate remedy.</p>

Oliver L. Davis, Judge, presiding. This was a bill in chancery, brought by James C. Ryan, the appellant, administrator of the estate of Nathan Willard, deceased, to remove a cloud from the title,- and to recover possession of certain lands of which it is alleged the said Nathan Willard died seized.

<p>1. Vendor and purchaser—remedy of the latter while in possession, against the former. In an action of debt, upon a bond for the conveyance of real estate within sixty days from its date, assigning, as a breach, the failure to convey within the time fixed, the defendants pleaded that, after the making of the writing obligatory, and before the commencement of the suit, the plaintiff, under the bond, entered into and took possession of the premises therein described, and remained in the use and occupancy of the same up to and until long after the commencement of the suit, and that the defendants executed and duly acknowledged a deed to the plaintiff to the lot and premises described, containing full covenants for a good title in fee simple, and free from all incumbrances, on a day named, (after the expiration of the sixty days,) and while the plaintiff was in possession of the premises, and offered to deliver the same to the plaintiff, and they, from that time, have been, and still are, ready, and offer, to deliver the same to the plaintiff: Held, that the pleas presented a bar to the action.</p> <p>2. A purchaser of land, who has paid the price and taken possession, can not maintain an action to recover back the purchase money, without giving up the possession of the premises. He can not retain the use of the estate and maintain an action to recover back what he has paid.* </p>

<p>1. Acknowledgment of deed—proof to impeach. Very clear and satisfactory proof is required to impeach a certificate of the acknowledgment of a deed or mortgage. The uncorroborated testimony of the grantor or party executing the same is not sufficient to overcome the evidence afforded by the officer’s certificate of the fact, especially when the execution of the deed is not denied, or any undue influence, coercion or fraud is shown.* </p> <p>2. Deed of trust—sale by auctioneer. A trustee in a deed of trust has the undoubted right to employ an auctioneer to sell the lands conveyed, and if he is present at the sale, directing and controlling it, this will be a compliance with the terms of the power of sale, and will satisfy the demands of the law.† </p>

<p>Writ of Error to the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.</p>

<p>1. Highway—previous survey may be adopted. Where a proper survey and plat of a proposed road have been made for the commissioners of highways, in a proceeding to establish a road, which falls through from some informalities, and the road is afterwards established, under new proceedings, upon the same route, there is no substantial objection to the adoption and use of such survey, and no new one need be had.</p> <p>2. Same — lime of presenting certificate to justice to have damages assessed. Where the notice given to the land owner, by commissioners of highways, of the presentation of their certificate that they are about to establish a road, fixed the time on March 11, while the justice’s docket entries in the case were dated March 13, it was held, that it might be shown, by other evidence, that the certificate was presented on the first named day, and the jurors selected on that day.</p> <p>3. Same—recitals in order laying out road made evidence. Where the final order of commissioners of highways establishing a road has the positive statement that their certificate was presented to the justice of the peace on a certain day, and a jury was selected by them and the land owners from the list of names presented by the justice, it will afford evidence of the facts, such final order being made by statute prima facie evidence of the regularity of the proceedings.</p> <p>4. Same—time fixed for assessing damages. Where the justice fixes the time for the assessment of damages within ten days from the filing of the certificate with him, as required by law, he may continue the case to a later day, and beyond the ten days, if, for any cause, notice has not been served on all the parties in time, and in such case he will not lose jurisdiction, and there is no error in taking the statement in the justice’s docket, and in the final order establishing the road, to show such fact.</p> <p>5. Right op wat—oath to jury assessing damages. An oath administered to a jury, before a justice of the peace, on a proceeding to establish a road, in the form prescribed by the statute, with the addition of the words, “if any,” as to the damages, does not render the proceedings void. The error, if any, does not go to the jurisdiction.</p> <p>6. Same—error in assessing damages can not be inquired, into collaterally. In trespass, for removing a fence to open a road, the proceeding to establish the road can not bernttacked collaterally for mere errors not going to the jurisdiction, and parol evidence, to show the jury adopted an improper basis in their assessment of damages, is inadmissible. The remedy in such case is by appeal.</p>

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

<p>1. Chancery practice — vacating decree after default. On application to vacate a decree rendered on default, the defendant must present an answer, showing a meritorious defense, or obtain time to prepare it; and this must be accompanied by an affidavit of its truth, and showing diligence, and all rea-, sonable effort to answer and make his defense, and a sufficient excuse for not doing so in time to prevent the default and final decree.</p> <p>2. Where no diligence to appear and defend in a suit for a divorce is shown, and the only excuse given for not doing so is, that the party did not know the cause would be tried at the return term, and no answer is presented, there is no error in refusing to open the decree and allow a-defense, even if the allowance of such application was not a matter of discretion.</p> <p>3. Divorce—decree as to custody of children. A decree giving a wife the custody of her children is not erroneous because it makes no provision for the father to visit and see them. He may do this, without such provision, at convenient and proper times, in a decent and respectful manner, and without using improper influences to dissatisfy them with their mother. If he abuses the privilege, he may properly be deprived of the right.</p> <p>4. Same—modifying decree as to custody of children. If a father, after divorce by his wife and a decree giving her the custody of the children of the marriage, is refused the right to see them, he may apply, under section 18 of the Divorce act, for a modification of the decree so as to secure a reasonable enjoyjoyment of the right.</p>

<p>1. Agency—-party bound by acts of one suffered to act as Ms general agent. Where a sou is suffered to act as a general agent for his father, both in buying and selling articles in the father’s line of business, the public will be justified in assuming that the son possessed all the powers of a general agent in buying and selling, and the father will be liable for goods ordered by the son in his father’s name, suited to his business, though the son uses the same himself.</p> <p>2. Same—presumption of authority to buy. While it is true, an authority to buy goods can not be inferred simply from an authority to sell, yet, where a clerk or shopman has been accustomed to buy as well as to sell for his principal, the presumption of full authority is equally applicable to both. By permitting another to hold himself out to the world as his agent, the principal adopts his acts, and will be held bound to the person who gives credit thereafter to the other.</p> <p>3. Same—presumption as to goods being adapted to principal!s business. Where the son of a grocery and saloon keeper, accustomed to buy and sell goods in his father’s name, ordered a lot of imported cigars and ale in his father’s name, but used the same himself, it will not, in the absence of proof to that effect, be presumed the goods were not adapted to the father’s business, so as to preclude a recovery against him.</p>

<p>!• Injunction—when orden- for,' is same as the writ. Where the defendant in a bill is present when an order for a writ of injunction is granted, and has full notice thereof, he is bound to observe it the same as if the writ were issued, or be in contempt; and on dismissal of the bill, thereby removing the restraining order, damages may be properly assessed.</p> <p>2. Removal or cause—to United States cowl. The fact that a non-resident complainant, as a stockholder of a banking corporation suing, is not allowed to transfer the cause to the United States court, can only be assigned for error by him, and when he does not unite in the appeal the corporation can not be heard to complain of the refusal to transfer the cause.</p> <p>3. Same—lime for making application. An application by a non-resident party to remove the cause to the-United States court, must be made at or before the term at which the cause could be first tried. Where the cause was set for hearing, by agreement, at the February term, and could then have been tried, and the application was made at the August term, after a demurrer was put in to the bill, and the bond filed in September following, the application was properly refused.</p> <p>4. Taxation—property of banking corporations. The tangible property of a corporation and the shares of stock, are separate and distinct kinds of property under different ownership, and are both liable to taxation under the provisions of the Revenue law.</p> <p>5. The taxation of the tangible property of a corporation, and the shares of stock thereof, is not double taxation, or unconstitutional. The property, though of different ownership, must be taxed by the municipalities from which such corporations derive their powers and franchises.</p> <p>6. Same—taxing shares of stockholders may be at the place where corporation does business. Although, at common law, personal property, as a general rule, has no situs of its own, but follows the person of the/ owner, the -rule is one of convenience only, and is subject to be changed by statute. Therefore, the Revenue law, for taxing shares of stock in a banking or other corporation at the place where the corporation is located, without regard to the residence of the owners of such shares, is constitutional and valid. This applies to prias well as to National banks.</p> <p>7. Banking law of 1851, repealed. The general Banking law of 1851, and the several acts amendatory thereof, at least so far as providing for taxation, have been repealed by subsequent legislation.</p>

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

Lyman Lacey, Judge, presiding. This suit was commenced in ejectment, against the Springfield and Northwestern Railway Company, to recover premises described in the declaration, which plaintiff claimed in fee simple. Service of process was had on the railway company, and at the November term, 1874, a trial was had, on a plea of not guilty, by consent of parties, before the court, without the intervention of a jury.

This was a suit by the trustees of schools of township 24 north of range 4 east, of the third principal meridian, upon a township treasurer’s bond to them, where there was judgment for the defendants, and the plaintiffs appealed.

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

<p>1. Homestead—defectinrelease obviated, by abandonment. Where a mortgagor abandons his homestead, it is immaterial whether he knew or was ignorant of the fact that- the mortgage contained a clause releasing it at the time he executed the same, or whether his wife signed or acknowledged the same; the mortgage will thereby be rendered operative as to the homestead.* </p> <p>2. Same—abandonment. Where, after the execution of a mortgage on premises occupied as a homestead, the mortgagor removes to another county with his family, taking his household goods, or most of them, and votes in such other county, and the proof shows no intention of his ever returning, this will be sufficient evidence of an abandonment of the homestead.* </p> <p>3. Residence—intention important. The intention of a party enters into and forms an important element in fixing’and determining his residence.</p>

This was an application in this court for a mandamus, the material facts of which are stated in the opinion of the court.

<p>1. Bin of review—requisites. It is indispensably necessary to a bill of review, that the former bill, and the proceedings thereon, and the decree, be fully set out or stated. A synopsis thereof is not sufficient.</p> <p>2. Same—does not lie to defects obnoxious to demurrer. If a bill in chancery is defective, advantage should be taken by demurrer, and not by bill of review.</p> <p>3. Same—who may maintain bill. Persons not parties to a bill in chancery, and who are, consequently, not affected by the decree therein, can not maintain a bill of review.</p>

<p>1. Dedication—land for highway. To constitute a dedication of land for a highway, the owner of the fee must give the right of way to the public, and it must be accepted and appropriated by the public to that use by travel, and a recognition of it as a public highway by repairs, or otherwise, by the proper authorities. To show a dedication, the acts of both the donor and the public authorities, in these respects, should be certain.</p> <p>2. Same—intent of owner must appear. In the absence of proof of an intention on the part of the owner of the land to dedicate its use to the public, a highway can not be regarded as existing by dedication.</p> <p>3. Where a road was laid out, under defective proceedings, and forcibly opened over a defendant’s land, he having opposed the same, and from that time forward contending there was no road, and refused to work out his road tax thereon, and the only proof tending to show a dedication was, his removing a tree and some brush therefrom, under the direction of the commissioners of' highways, it was held, that a verdict on the assumption of a dedication by him could not be sustained.</p>

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

This was an action of trover, by Washburn, against Roush & Humphreys, wherein he recovered a verdict and judgment against them for $490 damages, and they appealed. It appears, from the evidence, that in April, 1875, Washburn was the owner of a stock of goods in a store in Shirley, Illinois, which he was carrying on.

<p>1. Contract—note—whether of corporation or persons signing. A promissory note, commencing, “ninety days after date I promise to pay to,” etc., and signed A B and 0 D, “school trustees,” is the individual note of the persons signing the same, the words “ school trustees ” being simply descriptio person-arum, and is not the note of any school corporation.* </p> <p>2. School trustees—giving note after term of office expires. Quere, whether school trustees can give a promissory note binding upon the corporation, for money borrowed by them to build a school house, after their term of office has expired, and their successors elected and qualified.</p> <p>3. Indorser—of his liability and remedy. Where a promissory note is made to a third person, having no interest in the same, and his indorsement is procured, and the note then given to a bank, as security for a prior loan to the makers, the indorser will charge himself as security for the makers, and must look to them if he is compelled to take up the note. If the makers have expended the money for a school district, that is a matter between them and the district, and the indorser can not sue the district, there being no privity of contract between him and the district.</p>

<p>1. Municipal corporation—law of 1872 construed. The general law of 1872, for the incorporation and government of cities, etc., is to be construed as •an independent act, without reference to, or as an amendment of, any particular charter of any city or village. It was intended to apply to all cities which might adopt the same.</p> <p>2. Same—power to license packing houses, etc. The 81st. clause of section 62 of the general law, giving cities and villages the power to direct the location and regulate the management and construction of packing houses, etc., within their limits, and to the distance of one mile beyond, confers the power to license such establishments, as one means of regulating the same. The means of regulating and controlling such houses is left to each particular municipality, so that the method is reasonable and proper.</p> <p>3. The fact that a packing house has been licensed by the town of Lake, where it is located, but within one mile of the corporate limits of the city of Chicago, does not exempt the same from an ordinance of that city requiring it to be licensed by that municipality. The person or corporation using the establishment is liable to be charged a license by both the city and village.</p> <p>4. Same—police powers may extend beyond corporate limits. The legislature may, for police purposes, prescribe the limits of municipal bodies, enlarging or contracting them at pleasure, and give them power to pass ordinances to prevent nuisances, to operate beyond their boundaries.</p>

<p>1. Statute—strict construction—exemption law. A statute exempting property from levy and sale, is not to be construed strictly, but so as to carry out the obvious intention of the legislature.</p> <p>2. Exemption—statute construed as to team used, etc. The words “ used by the debtor in obtaining the support of his family,” in the statute exempting “ one yoke of oxen, or two horses in lieu thereof” not exceeding in value $200, being general, and restricted to no particular mode of use, are answered where the team is hired to others for a compensation which goes into the general fund to support the family, as well as where the debtor personally uses the same. But a team kept for pleasure is not within the letter or the spirit of the statute.</p> <p>3. Same—waiver. Where one, being indebted to another, agreed to turn over to him a stock of goods, and two horses and harness, and a wagon, out of which to pay such debt, and the creditor was to pay off an execution obtained by another creditor against the same debtor, or buy it and give time, but the team and harness were never delivered or demanded, and the execution was levied upon the team and harness, which was claimed as exempt, it was held, that the agreement to turn them over was not a waiver of the exemption.</p> <p>4. Same—debtor may sell property. Where property is exempt from execution, the debtor may sell, mortgage or pledge it, as he pleases, without making it subject to levy and sale under execution.</p>

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

<p>1. Contract—construction. A court of law has no right to presume contracting parties intended to insert in a written contract a provision other or different from that which the plain language used would indicate, and then give a construction to the contract which would only be legitimate if the contract contained the supposed omitted provision.</p> <p>2. Bond—when void for want of condition. A bond which recites that the principal obligor has made a contract with the obligee to receive from the latter certain teas and coffees, sell the same, pay over to the obligee the proceeds of sales, less the profits of the obligor, each month, and make complete settlement each thirty days, and, without any condition being expressed, concludes, “ then this obligation shall be void,” etc., creates no liability on the part of those executing the same.</p>

C. B. Smith, Judge, presiding. This was a suit commenced by James O’Brien against Hugh McNally, before a justice of the peace, to recover the value of an alleged division fence between himself and the defendant, and also for damages for the removal of a fence by the defendant, claimed to be a division fence.

Writ op Error to the Circuit Court of Edgar county; the Hon. Oliver L. Davis, Judge, presiding.

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

J. C. Allen, Judge, presiding. This was a bill for divorce, filed by the appellee against the appellant. The third and sixth instructions, referred to in the opinion, are as follows: “3. Personal cruelty may consist in other wrongs than mere physical violence, and may be by any means that tend . to render the life of the person wretched and miserable.” “6.

<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 De Witt county; the Hon. Lyman Lacey, Judge, presiding.</p>

This was an action of assumpsit, brought by Jonathan H. Cheney, against Thomas Snell, Abner Taylor, James Aiken and James P. Snell. The plaintiff recovered judgment and the defendants appealed.

Cyrus Epler, Judge, presiding. This was an action of assumpsit, brought by George W. Fuller against Edward Lambert, to recover the contract price for boring, drilling and tubing a hole on defendant’s land, 211 feet and 7 inches deep, in prospecting for coal.

Lyman Lacey, Judge, presiding. This was a suit of forcible detainer, wherein the plaintiff, Adolph Krebaum, recovered, and the defendant, Josephine E. West, appealed. The facts are as follows: On October 1, 1872, Benjamin F. West and Josephine West', his wife, the appellant, executed a trust deed upon the premises in controversy, being their homestead, to one John J. Fletcher, who, being a justice of the peace, took and certified its acknowledgment himself.

<p>Chancery—reforming deed—fraud. Where the terms of a deed are agreed on, and the parties go to a conveyancer and state such terms, to enable him to draft the deed, and the grantor, afterwards, without the knowledge of the grantee, gives other directions as to the terms to be inserted, which are followed, and the grantee accepts the deed, supposing it to be drawn as agreed on, a court of equity will reform the deed, the proceeding being a fraud upon the grantee.</p>

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

C. B. Smith, Judge, presiding. William Rea filed his bill in chancery, in the circuit court of Macon county, against Isaac D. Jennings, sheriff of Macon county, and George W. Forrest, alleging that on the 19th day of November, 1867, in the circuit court of Macon county, one James Millikin recovered a judgment for $993.75, and costs of suit, against one Hiram St. John and said Rea, which judgment was, on the 28th of June, 1871, assigned to said George W. Forrest; that on the…

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

<p>1. Sale—without notice of claim of another. If a party sells and delivers corn to another, taking a contract that the purchaser is to have no claim on the same until it is paid for, and the purchaser sells and delivers the same to a third person, who has no notice of the contract, the latter will hold the corn as against the original vendor, hut not if his purchase is fraudulent.</p> <p>2. Same—what is not a delivery. Where a purchaser of corn gave to the vendor a writing that he held no claim on the same until it was paid for at a specified price, and the vendor commenced hauling and putting the corn in the purchaser’s cribs, on the faith of the writing, and, before all was so put in the cribs, the purchaser sold the same to another, and attempted to deliver possession to his agent, it was held, that no title passed by the last sale, for want of delivery by the first vendor. Putting the corn in the purchaser’s cribs, under such circumstances, was held, no delivery as to any part, but only a preparation to deliver when all was hauled and paid for.</p> <p>3. Fraud—in purchase of grain. Where the proof showed that a party claiming to have purchased a lot of corn had not seen it before the alleged purchase, and had not met the seller and contracted with him, and had no knowledge of the sale to him until he received a sale bill by mail, duly acknowledged and recorded, and the purchaser claimed to have satisfied a note on the seller, and afterwards paid the balance of the price in currency, and the seller, in a few days after the alleged sale, went into bankruptcy, it was held, that the jury were justified in holding the sale was not in good faith, as against others having a claim on the same.</p>

<p>1. Appeal—-from refusal to vacate decree, does not involve prior proceedings. Where a final decree is rendered in a chancery suit upon the default of the defendant, and he applies at the next term thereafter, and asks to have the decree vacated and be allowed to defend, which is denied, and he appeals to this court, the appeal, it seems, will bring up nothing more than the decision overruling his application to vacate the decree and be allowed to defend.</p> <p>2. Chancery—answering term after decree. It is doubtful whether sec. 17 of the chancery code, which provides for allowing a defendant to file his answer at the next term after decree, upon showing cause and paying costs, has reference to a decree ordering a bill to be taken for confessed, or to final decrees.</p> <p>3. Same—setting aside decree, a matter of discretion. The vacating, or opening of decrees, and allowing a defense to the merits, is a matter within the sound legal discretion with which circuit courts are clothed, that will not be reviewed in an appellate court, except on such abuse as may work palpable injustice. It is not a matter of right.</p> <p>4. Where a defendant in chancery has been duly served with process, and has notice of every step in the cause, and has every opportunity afforded him of making a defense, and he deliberately elects not to appear and defend, and, after decree pro confesso, is notified of the taking of proof before the master, and refuses to attend, there is no abuse of discretion in refusing to allow him to answer and defend after final decree is entered against him.</p>

Charles S. Zane, Judge, presiding. This was an action of assumpsit, brought by appellee, in the circuit court of Sangamon county. Summons was issued to the sheriff of Alexander county, and by him returned duly served on defendants in that county.

; the Hon. Lyman Lacey, Judge, presiding. This was an action of assumpsit, by the appellant against the appellee, to recover the price for a bill of goods sold by the appellant to the appellee. The defense was, payment to Richards, the appellant’s agent, at the time he ordered the goods.

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

This was a bill filed by John Bishop, as a tax-payer in the town of Clintonia, against George B. Wright, receiver of the Indianapolis, Bloomington and Western Railway Company, the Indianapolis, Bloomington and Western Railway Company, the Havana, Mason City, Lincoln and Eastern Railway Company, the town of Clintonia and its supervisor and clerk, to enjoin the issue of $25,.000 in bonds voted in 1870, by'the town of Clintonia, to the Havana, Mason City, Lincoln and Eastern…

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

<p>1. Insurance companies—right to transact business in the city of Chicago with a capital less than $150,000. An insurance company organized under a prior special charter, with power to transact business in this State with a capital stock not less than $50,000, with the privilege of increasing the same to $300,000, may rightfully establish an agency in the city of Chicago with a capital less than $150,000.</p> <p>2. Section 6 of chapter 73, Rev. Stat. 1874, prohibiting joint stock companies from establishing agencies in the city of Chicago for the transaction of business in that , city with a less capital than $150,000 actually paid in, is intended to include such companies as may organize under the general laws of the State; while it is the intention of section 19 to allow companies acting under existing special charters to continue business with the amount of capítal authorized by their respective charters. The two sections were designed for two distinct classes of corporations.</p>

Oliver L. Davis, Judge, presiding. This was an action of trespass, brought by Jefferson P. Crawford against Joseph Cummins, for the shooting and wounding of the plaintiff by the defendant. The defendant pleaded not guilty and two pleas of son assault demesne. A trial was had, resulting-in a verdict -and judgment in favor of the plaintiff and assessing his damages at $1950.

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

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

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

Writ of Error to the County Court of Sangamon county; the Hon. James H. Matheny, Judge, presiding. This was an application, by the collector of Sangamon county, for judgment against certain real estate of the plaintiffs in error, for taxes due thereon for the year 1876 and prior years. The plaintiffs in error objected to the rendition of judgment on various grounds, which objections were overruled, and judgment rendered by the county court for the delinquent taxes.

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

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

<p>1. National bank-—right to acquire real estate inpayment of debts.* A bank organized under the National Banking law may acquire title to real estate, even though incumbered, if honestly done, for the purpose of securing a debt due it, and it may do this by taking a conveyance directly, or by sale under process of law. If the purpose is to speculate in real estate, under the form or pretense of obtaining satisfaction of a previous debt, it is forbidden by law.</p> <p>2. Where commission merchants in St. Louis were indebted to a National bank in the sum of $6500, on drafts drawn upon them and accepted, which the bank had discounted in its usual course of business, and, to secure such indebtedness, transferred to the bank .a note of $20,000 on another party, secured by a deed of trust upon real estate subject to further liens, and such other party made a deed of the property to the bank in payment of the sum due from him, the bank agreeing to discharge the other liens on the same, it was held, that the transaction was not forbidden by either the letter or spirit of the Banking law.</p>

<p>, „ 1. Subrogation—of judgment lien to purchaser. A person purchasing land at sheriffs sale under execution, and thus satisfying the judgment, is entitled, in equity, either to the land or to realize the money so paid, with interest, from the sale, and if such sale is set aside for an informality, as, selling the land en masse, he will be subrogated to the lien of the judgment, and the rights of the judgment creditor under the same.</p> <p>2. Judgment lien—setting aside sale, revives lien as against intervening judgment. Where a sheriff’s deed and a sale of lands under execution are set aside for irregularity in the sale, and the lands ordered to be sold for the benefit of the purchaser, the original lien of the judgment will he continued in force even as against the lien of an intervening judgment.</p> <p>3. Same—purchase subject to. A purchaser of land acquiring his title after a judgment against his grantor has become a lien on real estate takes subject to such lien, and a subsequent sale of the land under execution, if not redeemed from, will pass the title of the judgment debtor.</p> <p>4. Judicial sale en masse is not void. The sale of lands, capable of division, en masse, by a sheriff, under execution, is not void, but merely voidable, and is binding on all parties until set aside, a,nd if set aside in equity, the court should protect the rights of the purchaser by enforcing the lien of the judgment in his favor, even as against intervening liens, and a subsequent sale under such lien will pass the title of the judgment debtor.</p> <p>5. Same—inadequacy of price. When all the requirements of a decree for the sale of land are observed, a court of equity will not interfere with the rights of the purchaser in the absence of fraud, or something rendering it inequitable in holding and-enforcing them. Mere inadequacy of price, where there is doubt as to the acquisition of title, and a prospect of litigation, will not invalidate the sale.</p> <p>6. Same—approval of sale is sufficient, without approval of deed. Where the sheriff, as a special master, makes sale of lands under a decree, and his report of the sale is approved by the court, and he ordered to make a deed to the purchaser, which is reported, but no order made approving the making of the ' deed, the sale and conveyance can not be attacked collaterally for mere inadequacy of price. Approving the sale makes the officer’s act that of the court, and no order confirming the report of deed is necessary.</p> <p>7. Judgment—not satisfied by assignment. Where a person pays a judgment creditor the amount of his judgment against another, and takes an assignment, while the creditor is satisfied, the judgment is not, and the assignee may enforce its collection by process in the name of the judgment creditor.</p> <p>8. Agency—powers of agent. Authority in an agent to receive and receipt for money due the principal gives no power to release or exchange the security for the balance of the debt.</p> <p>9. Mortgage—sale under power by agent of person to sell. A sale made by the agent or attorney of a person entrusted with the execution of the power of sale in a sale mortgage, is not void, but voidable only by the person conferring the power. The maker of the power alone can question the sale for such irregularity—a creditor of him can not.* </p> <p>10. Sale under power—waiver of right to avoid by laches. A sale of land under a power in a mortgage, by an agent of the mortgagee, can not be set aside after an unreasonable delay on the part of the mortgagor unexplained. A delay of over four years in filing a bill to avoid the sale, is fatal to relief in equity. Such delay is a waiver of objection to the irregularity.</p> <p>11. Purchaser—without notice of equity, protected. An innocent purchaser of land without notice of any irregularity in the sale to his grantor under a power in a mortgage, will be protected in his title against an equitable right to avoid the sale as to his grantor, and notice will not be presumed. _</p>

This was an appeal from the judgment of a justice of the peace, by Benjamin D. Lucas. The defendant, Beebe, appeared and moved the court to dismiss the appeal for want of a sufficient appeal bond, whereupon the plaintiff entered a cross-motion for leave to amend the bond, and to dismiss the suit. The court then dismissed the appeal on defendant’s motion, because it had not been perfected in time.

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

This was a suit brought by appellee, against appellants, upon a bond executed by them as sureties, and Amasa Martin as principal, on the suing out by the latter from the circuit court of Kankakee county of a writ of capias ad respondendum against the appellee. Upon a trial by the court below, without a jury, the plaintiff recovered a judgment for $594 damages, and the defendants appealed.

<p>1. Damages—whether excessive. In a suit against a railway company, by a lady passenger, for a personal injury caused by gross negligence, and where it appeared the injury was severe, her spine being injured permanently, she being a person of education and a teacher by profession, $8958 damages, while considered large, was held not so excessive as to warrant a reversal of the judgment.</p> <p>2, Error—that does not prejudice. This court will not consider whether the court below erred in refusing to suppress a deposition which was not read in evidence.</p> <p>3. Continuance—when grounds are obviated. A refusal to grant a continuance because of the absence of the deposition of a witness, can not be assigned for error where it does not appear that any exception was taken to the ruling, but on the contrary, the deposition arrived before the trial, and was read in evidence.</p> <p>4. Exception—when necessary. A party can not assign for error the exclusion of a deposition when neither the substance nor subject of the deposition is given in the abstract, and when it does not appear that any exception was taken to the ruling of the court.</p> <p>5. Practice in Supreme Court—abstract. If it is insisted the court below erred in sustaining a demurrer to pleas, the abstract of the party should set out the demurrer and pleas, so as to enable this court to determine whether there was error or not.</p> <p>6. Practice—waiver of demurrer. If a plaintiff replies to pleas after a demurrer has been sustained to them, he thereby waives his demurrer, and the error in sustaining the demurrer, if any, is obviated.</p>

<p>1. Error—granting of temporary injunction can not be assigned for error. The granting of a temporary injunction in a cause can not be assigned for error.</p> <p>2. Chancery—proper evidence, only, considered. In chancery cases, the court considers the proper evidence before it, and determines from that alone; and this court will presume that a decree is based upon such evidence, without regard to such as is improper or irrelevant.* </p> <p>3. Fraudulent conveyance—advancement by a debtor to his child. Where a father is insolvent, he can not make an advancement to a minor son in fraud of his creditors. A debtor, while embarrassed and unable to pay his debts, can not give away his property to the injury of his creditors, and if he does so, it will be a fraud upon their rights, and they may reach it and subject it to the payment of their debts. In such a case, it is not necessary that the grantee shall consent to, or know, that the grantor intended to perpetrate a fraud, as he takes as a volunteer.</p> <p>4. Same—when gift is void—pre-existing and subsequent creditors. Where a father, in failing circumstances, enters land in his minor son’s name, only creditors at the time such fraud is committed can avoid the conveyance, unless it be shown that the act was made in anticipation of incurring debts, to avoid the payment of which the conveyance was made.† </p> <p>5. Same—presumption as to date of indebtedness. Where an entry of lands by a father, in the name of his minor son, is sought to be avoided by creditors of the father, it will not be presumed that the debts existed at the time of the transaction, in the absence of proof to that effect.</p> <p>6. Deed—of minor. Deeds made by a minor are not void, but only voidable. Their validity does not depend upon a ratification after the minor attains his majority, but to avoid them he must, by some act clear and unmistakable in its character, disaffirm their validity.</p> <p>7. Same—what acts avoid minor's deed. Notice by a person making a deed for land during minority, that he disaffirms the same, followed by acts of ownership, or such as indicate a claim of title as against the deed, such as possession, suit to regain possession, or to cancel the deed, payment of taxes, selling or leasing, or oifering to sell or lease, improving the premises, or such like acts, within a reasonable period after arriving at age, which, in analogy to the limitation in ejectment, after arriving at age, has been held by this court to be the limit of the time to disaffirm. Mere forgetfulness of having made a deed, for twelve years after attaining majority, will furnish no excuse for the delay in disaffirming a deed made during minority.</p> <p>8. Same—presumption as to delivery. Where a deed, duly executed, is found in the hands of the grantee, there is a strong implication that, it has been delivered, and only clear and convincing evidence can overcome the presumption. The unsupported evidence of the grantor, some fifteen or twenty years after the date of the deed, can not be received to rebut such presumption.</p> <p>9. Same—evidence to overcome certificate of acknowledgment. The certificate of the acknowledgment of a deed imports verity, and can not be overcome, except by clear and satisfactory evidence. The evidence of the grantor denying the execution of the deed, and the opinion of experts that the signature thereto is not that of the grantor, are not sufficient.* </p> <p>10. Same—certificate of acknowledgment as evidence on question of forgery. The law has made a certificate of the acknowledgment of a deed evidence of the execution of the deed by the party purporting to have acknowledged it, and, although not conclusive, it can be overcome only by clear and undoubted evidence. Proof that the signature is not in the handwriting of the grantor, falls far short of showing it to be a forgery. By acknowledging, the party adopts the signature and makes it his own.</p> <p>11. Same—consideration. Although no money is paid for a deed for land, yet, if it is given in payment or to secure an indebtedness of the grantee’s father, this will be ample consideration to support it and to pass the legal title.</p> <p>12. Notice—of title, by possession. The possession of land under a conveyance is notice to a subsequent purchaser of the prior grantee’s title, and if such subsequent purchaser takes possession, a court of equity will cancel his deed as a cloud on the title of the prior grantee, and restore the possession to him or to his heirs.</p>

<p>1. Municipal corporation—power to control sales of liquor gives a right to license. Where a special charter of a town gives the president and trustees “ complete and exclusive control ” “ over the selling, bartering,” etc., of spirituous and other liquors within the town, and then provides they may, by ordinance, declare the traffic, etc., in such liquors a nuisance, this will give them full power to regulate the sale of sjich liquors by license, and the authorities of such town will not be limited in the exercise of such control by the declaring of the sale, etc., a nuisance.</p> <p>2. Same—charter construed. Where a charter of a town gives the corporate authorities “ complete and exclusive control, as hereinafter provided, over the selling, bartering,” etc., of any spirituous and other liquors, and then, in the same section, gives the power to proceed as in other cases of nuisance, and concludes with a proviso in favor of druggists selling for certain purposes, and limiting the imposition of any fine under the section to $100 for any one offense, etc., the words “ as hereinafter provided,” will not be referred to the power to declare the sale, etc., a nuisance, but to the limitation in the proviso as to druggists, and the extent of the punishment.</p>

<p>1. Sale—whether properly in the thing passes, so as to give a right of action. Where corn is shipped by railroad for a purchaser, a bill of lading forwarded to him, and a draft drawn on him for the price, which is paid, the title to the grain will, ipso facto, be transferred to and vested in such purchaser, but the acceptance and payment of drafts drawn on general account, without reference to any particular lot forwarded, will not pass the title.</p> <p>2. Where a party buys grain in his own name, for which he is responsible, and ships the same -to another, who advances or pays no money on the same, but who accepts and pays drafts drawn on general account, the latter will not have such a property in the grain, either general or special, as to give him a right to maintain an action against the carrier for damages resulting from a delay in transportation, especially when it is provided by contract that the grain must first pass inspection.</p> <p>3. Pleading and evidence—proof required under general issue. Under the general issue in assumpsit against a carrier to recover damages for a delay in the transportation of grain, the plaintiff must show, by a clear preponderance of evidence, a right to recover. If he fails to show any property in the grain, this will be decisive against him, without reference to any errors as to the other material facts of the case.</p> <p>4. Carrier—liability for delay in transportation. Where a railway company refused to furnish cars for the transportation of grain to Cairo during t.he war, on account of the large accumulation of cars on its track at that point waiting to be unloaded, and finally furnished cars upon the promise of the shipper to unload the same, which was not done either by him or the consignee, but refused, it was held, in a suit against the company to recover damages for delay in transporting the grain, the jury were justified in finding for the defendant.</p>

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

C. B. Smith, Judge, presiding. This suit was commenced in attachment, in the circuit court of Champaign county, to the September term, 1875, against the Empire Transportation Company, a corporation created by, and existing under, the laws of the State of Pennsylvania, and having its principal office in that State.

<p>Party plaintiff—right of payee of note to erase indorsement. If the payee of a negotiable instrument has actually parted with the same, and transferred the title by indorsement, but, subsequently, becomes its owner, he will have the right to erase his indorsement, and reinvest himself with the legal title, and he may do this at any time, if the owner at the time the suit is brought, and he may do the same where he has never, in fact, parted with the title.</p>

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

<p>1. Pleading and evidence—estoppel under allegation of payment. Upon bill to foreclose a mortgage, a subsequent purchaser from the "mortgagor, who, in his answer, defends only by alleging payment by himself, can not insist upon an equitable estoppel growing out of the fact that the mortgagee obtained possession of the mortgage, upon which was indorsed a satisfaction, shown to have been made thereon under the expectation of receiving full payment.</p> <p>2. Evidence—as to foot of payment. The possession of a mortgage given to secure the payment of two notes, without the last note, with an indorsement of full payment and satisfaction on the mortgage, is not conclusive evidence of payment, and may be explained, as, by showing it was made by the holder of the mortgage and notes when sent for collection, but not to be delivered except on full payment.</p>

<p>1. Negligence—presumption—burden of proof. Where a railway car is thrown from the track, whereby a passenger for hire is injured, the presumption is, that the accident resulted either from the fact that the track was out of order, or the train badly managed, or both combined, and the onus is on the company to show it was not negligent in any respect.</p> <p>2. Where the track of a railway company is out of repair, pieces of old rails being used to supply the place of a broken rail, and laid upon rotten or decayed ties, and a train of cars is run over such track at a speed of from twenty-five to thirty miles an hour, and an accident occurs resulting in personal injury, the company will be liable.</p>

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

Cyrus Epler, Judge, presiding. This was a suit originally brought before a justice of the peace, by B. M. August & Son, against Peter Frame and John Frame. On the trial in the circuit court, the suit was dismissed as to John Frame, and judgment rendered in favor of the plaintiffs, against Peter Frame, on his verbal promise to pay the debt of John Frame.

<p>Fraud—representations not known to be untrue. A party procuring another to accept an agency of an insurance company, will not be liable to the latter from the mere fact that his written representations as to what the company would do turn out to be untrue. It must appear that he knew their falsity, and the other party relied upon the same, and sustained damage in consequence thereof.</p>

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

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

<p>1. Pleading—construed most strongly against the pleader. The allegations in a bill, like those in any other pleading, when they are in any degree equivocal, must be taken in the sense most unfavorable to the party whose pleading is the, subject of construction.</p> <p>2. Same—hill for divorce. So, upon bill filed by the husband for divorce on the ground of the alleged impotency of the wife, alleging that the wife was an hermaphrodite, and when sexually excited no male could have sexual intercourse with her, and charged that so the defendant was naturally impotent at the time of the marriage, and so continued: Held, upon demurrer, the bill failed to show the malformation complained of was such as necessarily to constitute impotency!</p> <p>3. Divorce—impotency—acquiescence. Where the complainant, in such case, sought a divorce thirteen years after the marriage, and for near eight years had cohabited with the defendant, with full knowledge and without complaint as to impotency, it was held, that in absence of strong rebutting facts he must be taken to have accepted the situation, and could not be heard to complain. Mere motives of delicacy are not a sufficient explanation of such long continued acquiescence.</p>

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

<p>1. Negligence—by parents of injured child. The parents of a child of too tender age to exercise care, having its custody, are chargeable with the duty of exercising reasonable care for its personal safety, and if for the want of such care it is killed by a passing train of cars, no recovery can be had on behalf of the next of kin.</p> <p>2. Same—comparative. AVhere there is negligence on the part of an injured party, or on the part of those charged with the care of the injured party, as, a child of tender years, contributing directly to produce the injury, there can be no recovery, unless such negligence is slight, and that of the defendant is gross in comparison, in regard to that which produced the injury. It is not sufficient, that the defendant may have been guilty of a greater degree of negligence in respect to the producing cause of the injury.</p> <p>3. Where a child of twenty-eight months of age was suffered by its parents to wander upon a railroad track, where it was killed by a passing train on ns usual time, or nearly so, and there was no fence or inclosure to prevent the child from going from its parents’ house upon the track, and the child was not looked after until the whistle of the locomotive was sounded, it was doubted whether any recovery could be had by the next of kin.</p> <p>4. Instruction—when great accuracy is required. In a suit against a railway company, to recover damages for the death of a child of tender -years, if the evidence makes it a debatable point whether its parents exercised reasonable care for its safety, the jury ought to be most accurately instructed in relation to the doctrine of comparative negligence.</p>

Oliver L. Davis, Judge, presiding. This was a bill in equity, filed by appellees, against appellants, to set aside certain conveyances as having been procured by fraudulent and false representations.

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

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

<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 Macon county; the Hon. C. B. Smith, Judge, presiding.</p>

Oliver L. Davis, Judge, presiding. This was a bill, by the appellant against the appellee, as township collector, to enjoin him from collecting certain taxes levied on appellant’s capital stock.

<p>Covenant of warranty—only broken by eviction, or something equivalent thereto. The covenant of warranty is regarded as, in effect, a covenant for quiet enjoyment, and can only he broken by something equivalent to an eviction or disturbance of the possession of the grantee. The mere existence of a paramount title in another is not, of itself, sufficient to constitute a breach of the covenant of warranty.</p>

This was an application by the Illinois Midland Railway Company for a mandamus, against the supervisor and town clerk of the town of Waynesville, in DeWitt county, to compel them to issue and deliver to the relator $50,000 of the bonds of the town, upon a subscription voted by the electors of the town to the relator company.

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

This was a suit by the appellee against the appellants, orig-mating before a justice of the peace, for damages done to real estate. The evidence showed that the plaintiff was the owner of a house and lot in Chatsworth, which rented for $8 to $12 per month.

Owen T. Reeves, Judge, presiding. This is ejectment, brought by Emory, March 20, 1877, against Keighan and others, claiming in fee the land in controversy. A plea of not guilty was interposed by defendants. On this issue the verdict was for the defendants. Plaintiff moved for a new trial, which was refused, and defendants had judgment, and plaintiff appeals. The evidence is all preserved in a bill of exceptions.

<p>1. Appeal prom county court—who entitled to, from order transferring claim from seventh to sixth class. Where a guardian dies, having in his hands funds to his ward, his surety on the guardian’s bond, although not a party *0 the record, has a right to appeal from an order of the county court transferring a claim other than the ward’s, allowed as of the seventh class, against the estate of the deceased, and Ordering the administrator to pay it as of the sixth class.</p> <p>2. Administration—of a trust estate. Where a party voluntarily places his property in the hands of another, to control and manage for him as his agent, and afterwards, upon a settlement, takes the note of his agent for the indebtedness due him, and the agent dies, the indebtedness will not be allowed as a claim of the sixth class against the estate of the deceased, notwithstanding he acted as the confidential adviser of the creditor in the management and control of the property so placed in his hands. The relation between the parties was not that of trustee and cestui que trust.</p>

<p>1. Resulting trust—evidence to show. Where a guardian appointed by will loaned money, taking a note secured by a mortgage payable to himself, he being described therein as executor of the estate of the deceased father of his wards, it was held that this was by no means conclusive evidence that the money loaned was that, of his wards, and on bill filed by them many years after to reach the land after foreclosure of the mortgage, and its purchase by the guardian, where it appeared that the guardian had accounted for all the money shown to have come to his hands, with interest, and settled with the probate court, procured his discharge and paid all taxes on the land with his own money, it was held, that no relief could be granted thereon, and the bill was dismissed.</p> <p>2. Guardian and ward—clear proof required to impeach guardian’s account. After the lapse of many years from the final settlement of a guardian with his wards after their majority, satisfactory evidence will be required to show that he holds funds in his hands not accounted .for in his settlement.</p> <p>3. Chancery—clear proof required when claim is stale. A court of equity will not readily lend its aid to establish a stale claim made many years after the transaction out of which it arises, and after the death of the party whose estate is sought to be charged, without the clearest proof of its justness.</p>

<p>1. Election—ballot not giving full name. In an election, where there were two candidates for the office of circuit clerk, one of whom was E. E. Clark, a ballot cast for “ E. Clark" for clerk of the circuit court, and another for “Clark” for same office, were not counted for “E. E. Clark”: Held, that they should have been counted for him.</p> <p>2. Same—ballot with names of two candidates for same office. Where a ballot cast at an election had the name “Clark ” written on it, and “ W. E. Robinson,” printed, with the words “for clerk of the circuit court,” erased, it was held right not to count the same for either of the two candidates.</p> <p>3. Same — ballots construed as to name of candidate. At an election, where there were but two candidates for circuit clerk, E. E. Clark and William E. Robinson, it was held, that three votes cast respectively for “ W. E. Robso,” “Robertson,” and “W. E. Robers,” for clerk of the circuit court, should be counted for William E. Robinson. And when the name “E. E. Clark,” in the printed ballot, was erased, and the word “ Robin—" written on the margin of the left of the words “ for circuit clerk,” with a light mark at the end of the name, a half inch long, it was held, that the vote should have been counted for Robinson.</p> <p>4. Same—vote of foreigner not naturalized. In a contested election, where the proof shows that persons of foreign birth voted who had only made declarations of their intention to become citizens of the United States, it was held, that their votes should not be counted.</p> <p>5. Same—right of person to vote—defect of mental powers. A person who is capable of doing ordinary work, and transacting business, who knows money and its value, makes his own contracts and does his own trading, or a person vacillating and easily persuaded, or a person who has been laboring under some kind of illusion or hallucination, but not so as to incapacitate him for the general management of business, which illusion or hallucination is not shown to extend to political matters, can not be denied the privilege of the elective franchise on the ground of a want of mental capacity.</p> <p>C. Same—proof of qualification of unregistered voter. The vote of an unregistered voter, received by the judges of election on his affidavit, will not be rejected because the other proof of his qualification was made by a person not a householder and registered voter. The statute in this respect is directory.</p> <p>7. Same—vote presumed to be legal. The presumption of the legality of a vote in no way depends upon the omission to challenge or object to it, or any presumed knowledge of the judges of election, but it arises from the fact of its having been deposited in the ballot box. When once deposited, it will be presumed to be a legal vote until there is evidence to the contrary.</p> <p>8. Same—delivery of ballot by sick person. Where a sick person is brought in a carriage to the window of the school house in which an election is held, and reaches out his ballot to one of the judges, who extends his hand through the window, but not being able to reach far enough, a person standing by hands it to the judge, in whose sight it is until received by him, such person’s vote can not be rejected on the ground of not having been personally given.</p> <p>9. Same—residence of pauper. A pauper remaining at the county poor house, and sent there from another township, does not acquire a residence in the township in which the poor house is located, so as to entitle him to vote in the latter township.</p> <p>10. Persons under legal disability or restraint, persons of non-sane memory, or persons in want of freedom, are incapable of losing or gaining a residence by acts performed by them under the control of others. There must be an act of volition by persons free from restraint and capable of acting for themselves, in order to acquire a change of residence. A person, by being removed from his town to the county poor house in a different town, does not thereby lose his residence in the town from which he came.</p> <p>11. Same—rejection of double ballot. There is no warrant of law for rejecting a numbered ballot because it is folded with one which is not numbered.</p> <p>12. Same—place of voting—change of towns. Where the division of a county into townships is shown, by the records of the county, to justify persons residing in one of the towns thus established in voting in an adjoining one, it must be shown the boundaries of the towns have been changed by the board of supervisors according to law. Proof that such persons were assessed in the adjoining town, paid taxes and worked roads therein, is not sufficient to sho\v a change. If there was no record, such proof, it seems, might be received as evidence of a change, if of sufficient antiquity.</p> <p>13. Same—evidence of identity of voter. Where a person by the name of Peter Mason voted at an election, and, on a contest of the election, a man of that name was called as a witness, and who showed he was of foreign birth, and had never been naturalized, it was held, that, as he was found in the same county, it would be presumed, from the, identity of name, that the witness was the person who voted.</p>

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

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

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

<p>1. Railway cobpobation—powers before stock subscribed. A railway corporation formed under the general act of March 1, 1872, or the charter directors, can do such acts only as are necessary to set the association in motion as a corporation, until the whole number of shares of capital stock fixed in its articles of association have been subscribed. Until that is done, they can not make contracts, or incur liabilities for the construction of the contemplated road, in which no one of them may have had a pecuniary interest as a stockholder.</p> <p>2. Same—right to make calk of stock. Where a railway corporation was attempted to be formed under the act of March 1, 1872, and its capital stock fixed in its articles at §1,000,000, and the shares of capital stock fixed at 10,-000, of §100 .each, it was held, that until the whole amount had been subscribed, the corporation could have no legal existence, and that until the whole stock was subscribed, the directors could not make any call or assessment on the shares of those who had subscribed.</p>

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

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

Charles S. Zane, Judge, presiding. Appellee is the widow of Daniel V. Voorhies, deceased. Appellant and his brother and sister are the only heirs of deceased. At his death, Daniel V. Voorhies was the owner of a tract of land. The parties all occupied the same in common after his death.

<p>1. Taxation—right of State board to increase value of railroad property returned. The State Board of Equalization has the power to increase the valuation of railroad property returned by the officers of the corporation without first hearing evidence impeaching the return. Such return is not made prima facie or conclusive evidence of anything. The constitution requires the officers whose duty it is to assess, to fix the value of property assessed, and not the owner.</p> <p>2. Same—evidence not required in assessing property. It is not essential to the validity of an assessment that township and other assessors shall hear evidence in fixing the taxable value of property, but they may act upon their own knowledge and judgment, and the same rule is equally applicable to the State Board of Equalization.</p> <p>3. Same—failure to return local levy in time. A failure to return the certificate of local taxes required to be levied for school and other municipal purposes to the county clerk on or before the day named in sec. 122 of the Revenue act, is cured by sec. 191 of the same law, and the omission does not affect the substantial justice of the tax, and therefore can not defeat its collection.</p>

William W. Farwell, Judge, presiding. The record shows that at the August term, 1875, of the Criminal Court o'f Cook county, the following motion was presented to the court: “And now on this day comes Charles H. Reed, State’s attorney for said county of Cook, and at the instance of Judson M. W. Jones, as relator, presents to the court the annexed petition of said Judson M. W. Jones, for leave to file an information in the nature of a quo warranto, in the name of the People…

On the 1st day of August, 1874, Martin B. Thompson, administrator, exhibited his bill in chancery in the court below, against Laura A. Goodrich, Robert Frew and Calvin H. Frew, for the foreclosure of a mortgage. At the April term, 1875, of that court, a decree pro confesso was entered against the defendants, and a sale of the mortgaged premises was ordered to be made by the master in chancery. The master sold the premises, in obedience to the decree.

<p>1. Degree or evidence—to prove adultery. On a charge of adultery as a ' ground of divorce, a preponderance of evidence is sufficient to establish the charge. It is not required that the jury be satisfied beyond a reasonable doubt.</p> <p>2. An instruction, on the trial of a suit for divorce as to a charge of adultery, that while such a charge may be proved by circumstantial evidence, yet, to make out the charge by such evidence alone, it must be so connected, when taken together, as to exclude every other reasonable hypothesis than that of the guilt of the party charged, was held, erroneous, as requiring the jury to be satisfied beyond a reasonable doubt.</p> <p>3. Same—rule when facts may he attributed to innocence as well as to guilt. Where a violation of the marital rights is charged by the commission of an act that degrades the parties, and inflicts great injury upon society, and the evidence may as well establish innocence as guilt, the jury should always adopt the former rather than the latter hypothesis.</p>

<p>1. Pleading and evidence—as to the character of negligence. In a suit to recover damages for a personal injury occasioned by the negligence of the defendant, the allegation and proof must correspond. The plaintiff can not aver negligence in one particular, and prove, on the trial, that the defendant was guilty of negligence in another.</p> <p>2. In a suit against a railroad company for damages on account of a personal injury, alleged to have been caused by the defendant carelessly running its tra.in against a horse, it is not competent for the plaintiff to prove that the railroad track was not properly fenced, or that the cars were not provided with steam brakes, or any other negligence than that averred.</p> <p>3. Where the only negligence averred in the declaration, in a suit, against a railroad company, is, that it ran its train carelessly, it is error to instruct the jury that, if the defendant was negligent in its failure to use air brakes, or other proper machinery in running its train, the plaintiff is. entitled to recover.</p>

Complaint, under oath, was made, charging that defendant permitted snow to remain upon’ the sidewalk abutting on premises occupiedx by him as a “ wood and stable lot,” contrary to an ordinance of the city which provides, that “ whoever, being the occupant of any occupied premises, or the owner of any vacant premises, shall suffer any snow to remain on any sidewalk or footway adjacent thereto longer than six hours from the time it ceases falling, or if the cessation be in the…

This was an action on the case, by Ann Goodrich, against the city of Bloomington, for an injury alleged to have been sustained by plaintiff on account of the defective condition of a sidewalk. Upon trial, the jury returned a verdict for $4500. Judgment was rendered accordingly. The defendant appealed.

<p>Practice—amendment changing the parties plaintiff. An action was commenced in the name of “George Chandler,receiver of the Lamar Insurance Company," to recover upon the subscription of the defendant to the capital stock of the company. It was held to be error to refuse leave to plaintiff to so amend the record that the cause should stand in the name of “ The Lamar Insurance Company,” instead of that of “ George Chandler, receiver.”</p>

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

Lyman Lacey, Judge, presiding. Miss Hudson was a teacher employed by the directors. Her duties required her to teach in a graded school—the pupils in a certain room. Without leave from the directors, she employed and procured another person to take her place temporarily as teacher of the pupils in her room, and absented herself from her post. This was at noon on Wednesday.

<p>1. Administration—what is money in trust, to be allowedin sixth class. Where a party bought cattle with his own money for another to pasture and feed, under an agreement that the cattle were to belong to the former, who was to sell the same, and after deducting the money advanced in the purchase, with interest and expenses and commissions, pay over the balance to the latter, and the latter sold a portion of the cattle and received the proceeds before his death, and the money could not be identified, it was held, that such money was not trust money, within the meaning of the statute classifying claims against estates, and that the owner of the cattle was not entitled to have his claim for the same allowed in the sixth class; but as to another lot, sold just before the death of the party intrusted with the cattle, where the proceeds of the sale could be identified, and which came to the hands of bis exeoutor, the owner was entitled to have his claim for his share of the proceeds allowed in the sixth class.</p> <p>2. Another portion of the cattle remained undisposed of at the death of the party who, under the contract, was to feed and pasture them, and were on the pasture of a third person, who held a lien on the cattle for his rent. These cattle were subsequently sold under a stipulation of all the parties interested that the proceeds of the sale should be deposited, to await the settlement of the rights of the parties. It was held, should there remain any surplus of these proceeds, after satisfying the claim for rent., there should he a like allow- , anee in the sixth class to the extent of such surplus.</p> <p>3. Same—statute construed. The clause of the statute relating to the classification of claims against estates of deceased persons, and which gives a preference in cases where the deceased has “received money in trust for any purpose,” does not necessarily extend to and embrace every kind of trust. It does not embrace trusts implied by the law.</p> <p>4. Usury—not presumed. Usury is not to be presumed in a transaction, hut must be shown by the party setting it up. In this case, where a party was to buy and did buy §50,000 worth of cattle, which another was to keep and prepare for market, and the purchaser of them was to sell them to reimburse his advances, with interest, and receive commissions for purchasing and selling, it was claimed there was usury, as the purchaser did not advance all the money at once, and rendered no services for the reserved commissions, but it did not appear that the whole sum was not held and kept ready to pay for the cattle from the time of making the contract. The court held, that the facts did not show usury, there being no allowance of the commissions, as no services were rendered.</p>

O. T. Reeves, Judge, presiding. This was an action of trespass, brought by Luke Nevin against Jesse H. Butler and the city of Bloomington, for the seizure and sale of the plaintiff’s personal property, by the defendant Butler, under a special warrant, issued by the city for the collection of a special tax for the cost and expense of building a sidewalk.

<p>Change of venüe—by whom application should be made. Where the petition for a change of venue is neither signed nor sworn to by the party in whose behalf the motion is made, the application should be denied. There is no statute authorizing any other person than the party himself to petition for a change of venue.</p>

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

George W. Pleasants, Judge, presiding. Ralph Sage exhibited his bill in chancery in the court below, alleging that he is the owner of certain tracts of land situate in the county of Whiteside, and described as follows: the west half of the north-west quarter and west half of the south-west quarter of section four; the east half of section five; the Avest half of lot two of the north-west quarter of section five, and the north-west quarter of the north-west quarter of section…

Writ op Error to the Circuit Court of Sangamon county; the Hon. John A. McClernand, Judge, presiding. This was a bill in chancery, filed in the circuit court of Sangamon county, by the complainants, trustees of the First Methodist Episcopal Church of Springfield, against the defendants, heirs of Pascal P. Enos, deceased, for the oonveyance or quieting of title to certain real estate.

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

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

<p>1. Fraudulent conveyance—indebtedness at the time not sufficient to show.. Mere indebtedness as security will not, per se, establish that a voluntary conveyance is void, even as to existing creditors, unless the other circumstances of the case justly create a presumption of fraud, actual or constructive, from the condition of the parties, and the direct tendency of the conveyance is to impair the rights of creditors.</p> <p>2. Same—voluntary settlement, retaining means sufficient to pay debts. A settlement made on a wife or child can not be held fraudulent and covinous from the fact of indebtedness at the time of making the settlement., if the grantor retains sufficient property with which to discharge his debts.</p> <p>3. Where a father, several years before a conveyance of his lands upon which he resided, to his son, became security upon several notes, amounting in all to about $1600, the principal being perfectly solvent until long after their maturity, and there was no proof whatever that the grantor had any knowledge of the existence of the security debts when he made the conveyance, or of any fraudulent intent on his part, and the grantor retained property sufficient to have paid such debts, and it appeared there was some money paid by the son at the time of the conveyance, and a debt of $1000 of his father assumed by him, and some other debts, which he paid, and that he obligated himself to support his father and mother during their lives, with a possibility of a reverter in case of the death of the grantee without issue, it was held, that the transaction had none of the elements of fraud as against the creditors of the grantor.</p>

Joseph Sibley, Judge, presiding. This was an action on the case, brought by Abner True against the Keokuk Northern Line Packet Company. Instructions numbered 4 and 4|, given for the plaintiff, are as follows: “ 4.

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