Volume 89 — Illinois Reports

<p>1. Will—right of married woman to devise real estate—separate property. Since the passage of the Married Woman’s act of 1861, a married woman, married before that, act took effect, may devise, by will, real estate which she owned at the time of her marriage. Under the Rev. Stat. of 1845 she could devise her separate property, and the act of 1861 enlarged the meaning of the term “ separate property,” and made it embrace such property as a married woman owned at the time of her marriage, or such as she should acquire during coverture, in good faith, from any person other than her husband, and made the same subject to devise by her.</p> <p>2. Where a woman, at the time of her marriage (in 1860), owned real estate by inheritance from her deceased father, in 1870, while the marriage still existed, in due form of law, by will, devised the same, and in 1871 obtained a decree of divorce for the misconduct of her husband, and the will was duly probated after her death, it was held, on bill by her heirs to set aside the will and probate, that the will was valid, and passed her estate to the devisee, her husband having lost all interest in the lands by the decree of divorce.</p> <p>3. Same—regulated by statute. The rules providing for the descent of property have their origin in municipal regulation, and so, too, the power to dispose of property by will is eonferrecl by statute, and may be curtailed or enlarged, from time to time, as the legislative department may deem wise and for the best interests of the people.</p> <p>4. Same—description of land, one good and the other wrong. Where lands devised are described in the correct township and range, but, by mistake, in a wrong section, but with this addition: “being what is known as the Hays farm,” the misdescription as to the section will not hurt, as all the description except the latter may be rejected as surplusage, and it is sufficient of itself.</p> <p>5. Married women—separate property created. Since the passage of the act of 1861, property purchased by a married woman during coverture, or property inherited by her before or since that act became a law, has been recognized and treated by this court as her separate property.</p> <p>6. Lease—good as against devisee of married woman. Where a husband and wife executed a lease of the wife’s lands for a term of ten years, and the wife devised the same, after which she obtained a divorce, and then died, it was held, that although her husband had lost all rights under the lease by the decree of divorce, it was binding upon the wife and those claiming title under her.</p>

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

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

Amos Watts, Judge, presiding. This action was brought in assumpsit, by Mary S. Bond and Joshua S. Bond, executors of Leah P. Webster, deceased, on two promissory notes given by John P. Blackwell, since deceased, with Rufus W. Ramsey as surety.

Amos Watts, Judge, presiding. This was a suit prosecuted for the use of August Krug, against Thomas A. Bainey, a constable of Clinton county, under section 214, p. 384, Bev.

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

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

Writ of Error to the Circuit Court of Saline county; the Hon. Willis Allen, Judge, presiding. This was a bill in chancery, filed by Braxton P. Tate and Harriet E. Tate, by George W. Tate, their next friend, and Hiram B. Tate, against Parker M. Tate and Robert A. Tate, to set aside the will of John V. Tate, resulting in a decree setting aside the will.

<p>1. Carrier—limitation of liability. The right of a carrier to limit its common law liability by contract, if made fairly and advisedly on behalf of the shipper, can not be denied; but the mere fact that the bill of lading given contains a clause exempting the carrier from loss of the goods by fire, can not' be held conclusive of such a contract.</p> <p>2. If a shipper, with full knowledge of the terms and conditions of a bill of lading given for goods to be transported, assents to and accepts the same as the contract under which the goods are shipped, then the bill of lading will constitute a binding contract, which will control the’ rights and liabilities of the parties. Whether the shipper knows the terms and conditions of a bill of lading, and assents to the same, is a question of fact for the jury.</p> <p>3. Same—restriction of liability in bill of lading not assented to by shipper. Where the shipper of goods has no knowledge that the bill of lading given contains a provision releasing the carrier from liability for loss by fire, and the goods are destroyed by fire before reaching their destination, and while in the custody of the carrier, the latter will be liable to the owner for their value.</p> <p>4. Deposition—mistake in name of party. Where suit was brought against the “ Merchants’ Despatch Company,” and a deposition. taken on behalf of the plaintiff, together with the notice of the same, was in the same name, and afterwards, by leave of court, the summons was amended so as to describe the defendant as the “ Merchants’ Despatch Transportation Company,” it was held, that under the circumstances the slight mistake in the defendant’s name in the notice and in the deposition, was not a sufficient error to exclude the deposition as evidence.</p> <p>5. Barits—objection to misnomer of party must be taken before trial. A mere formal objection to a deposition, such as a slight mistake in the corporate name of the defendant, must be urged by motion to suppress, before the case is called for trial. After trial, the objection comes too late.</p> <p>6; Same—specific objection must be made to answers giving a mere legal opinion. The opinion of a witness given in a deposition as to the liability of a carrier under a bill of- lading, is not competent testimony, but a specific objection should be made to the same on the trial. It comes too late when made in this court for the first time.</p> <p>7. Practice—time to object to evidence. This court will not inquire whether declarations of an agent are competent to establish a promise to pay, where the record fails to show that the other party objected to the introduction of evidence of them.</p> <p>8. Evidence—declarations of agent. Where the fact of agency has been proved, either expressly or presumptively, the act of the agent, co-extensive with his authority,- is the act of the principal, and whatever the agent says within the scope of his authority, the principal says, and evidence may be given of such acts and declarations as if they had been actually done and made by the principal himself.</p> <p>9. Where a general agent of a common carrier, with power to settle and adjust losses, makes a promise, to pay for a loss upon a certain contingency, evidence of such promise is proper for the consideration of the jury in a suit against the carrier for a loss of goods shipped.</p>

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

<p>1. Appeal—-from county to circuit court. An appeal lies from the county to the circuit court in all matters arising under the statute relating to the administration of the estates of deceased persons, and this includes orders or decrees made granting leave to sell real estate to pay debts.</p> <p>2. Same—statute construed. Section 188 of chapter 37, Rev. Stat. of 1874, does not, either expressly or by implication, repeal any part of section 123 of chapter 3, Rev. Stat. 1874, but appeals may, in the discretion of the party appealing, be prosecuted as provided by either section.</p> <p>3. Evidence — minutes of county clerk. Minutes of the county clerk, to the effect that an executor had been ordered to give an additional bond, and upon his failure to do so was removed, are not admissible in evidence for any purpose. But if such are the facts, the record may be amended so as to show it, and the record, when amended, will constitute the only proper evidence of removal.</p> <p>4. Administration—removal of administrator does not defeat an application to sell real estate. The fact that, an executor or administrator has been removed after petition has been filed to sell lands to pay debts, is no reason for the dismissal of the proceeding. The proceeding can only be delayed until a properly qualified executor or administrator shall be found to proceed.</p>

James C. Allen, Judge, presiding. This was an action of ejectment, brought by Roland G. Whitney against U. G. Stevens, to recover 160 acres of land. The court rendered judgment in favor of the defendant.

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

<p>Appeal—-from county to circuit court—cleric can not approve bond. Upon appeal from the county to the circuit court, the court must not only fix the amount of the bond, and its conditions, but must also approve of the security. The court can not delegate the power to approve the security to its clerk, any more than the others. Where the bond is approved by the county clerk, the appeal is properly dismissed. The rule is different in appeals from the circuit court.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. An election was held by the villagers of Cahokia in March, A. D. 1875, for the election of school trustees, under the statute of 1841, providing for such elections. Appellee, being at that time one of the villagers of that village, offered to vote for school trustees, and was refused that privilege by appellants, who were acting as judges of that election, and this upon the ground that he was a negro.

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

<p>Limitation—when the statute begins to run. The Statute of Limitations does not begin to run in favor of a common carrier from the delivery of goods to be carried, but from the time when a cause of action accrues to the owner. So, although goods were shipped more than five years before suit brought by the owner to recover for their loss by fire, but were destroyed within five years before suit, it was held, that the cause of action was not barred.</p>

<p>1. Contract—construed. Where a grantor of land, after full payment of the purchase money, in consideration of the promise of the grantee to pay him a further sum, agreed to “ show and present to ” the grantee “ a perfect chain of title to said property from the United States government,” within ninety days, but the agreement to pay to be void if the grantor should fail to procure and present such perfect chain of title, it was held, the words, “chain of title from the United States government,” meant the successive links, each perfect in itself, to connect the grantee and invest in him the title of the government, and not merely a colorable title with possession and payment of taxes, sufficient to bar a recovery by an adverse claimant, under the Statute of Limitations.</p> <p>2. French claims—Governor's deed of confirmation passes the government title. Where lands have been confirmed in a party by the Governor’s deed of confirmation, pursuant to act of Congress, the United States, thereafter, has no interest therein which it can sell or patent to another, and a patent issued therefor to a third person passes no title.</p> <p>3. Limitation—color of title. A patent from the United States for lands previously confirmed to another by the Governor of the Northwestern territory, under the act of Congress, while it passes .no title, is good color of title under the Limitation law of 1839.</p>

Cyrxjs Epler, Judge, presiding. The bill in chancery in this case, filed March 6,1872, charges that on the first day of November, 1868, one James M. Osborne, then of Jersey county, in this State, sold to one Aquilla Beeves the land in the bill mentioned, for $340, taking from Beeves his two promissory notes, each for the sum of $170, the one payable on the 1st day of January, 1870, and the other on the 1st day of January, 1871, and giving to Beeves a bond for the conveyance…

Tazewell B. Tanner, Judge, presiding. This was a bill in chancery, filed by Edward Abend, as the conservator of Ann Bradford, against George A. Bradford, to set aside a decree of divorce rendered on a bill in the name of Ann M. Bradford, against George A. Bradford, in the St. Clair circuit court, at the September term, 1858, and for an order for the defendant to contribute to the support of his insane wife.

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

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

<p>• 1. Contract—condition construed—building and, equipment of road. A written agreement to pay money, if a certain railroad shall be built, and equipped, and running from one point to another, before a certain day, requires a finished road adapted to and capable of being used for the purpose of its construction, and not one incomplete and unfit for use, and such road can not be said to be equipped until it has the necessary engines, cars and other appliances for its ordinary use, as such roads usually have, and the passage of a single train over the road is nota running, within the meaning of the contract, where the road is in an unfinished state.</p> <p>2. Where a written promise was made to pay a railway company $100 if its road was built and equipped, and trains running to a given point by a day named, but if not completed on such line within such time, the obligation to be void,' and the proof- showed that the company ran an engine, tender, one passenger coach and one or two flat cars over the line two days before the time limited, but places on the road were only half tied, and regular trains were not run over the same until several months after the time, it was held, that no recovery could be had on the obligation.</p> <p>3. Error—that works no injury. The admission of evidence denying the execution of a note by one partner, or that it was not given in the usual course of business of the firm, which is afterwards excluded by an instruction, even if erroneously admitted, can work no injury, and is not ground of reversal. Neither is the admission of evidence which could, in nowise, have influenced the finding of the jury.</p>

<p>1. Change of Venue—out of circuit in criminal case. The sending of a criminal case to an adjoining county, but out of the judicial circuit, upon an application by the defendant for a change of venue on the ground of prejudice of the inhabitants of the county in which the indictment is found, is not in violation of the constitutional provision which secures to the accused a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.</p> <p>2. Same—right to trial in district waived. The constitutional right to a trial in the county or district in which an offense is alleged to have been committed, is one that a defendant may waive, and which is waived by a petition for a change of -venue.</p> <p>3. Constitution—right to trial.in county or district. The plain object of the clause of the .constitution giving the'accused the right to a speedy public trial by an impartial jury of the county or district, etc., is to secure the common law right of trial by a jury of the visne or neighborhood where the offense is alleged to have been committed, and to protect him against a prosecution elsewhere. The grand jury indicting, and the traverse jury trying, must be of the visne. The creation of judicial circuits has no reference to the enforcement of this clause of the -constitution-, but the word .“ district,” is convertible with that of “ county,” and is descriptive of the territory which in legal contemplation comprises the visne.</p> <p>1. Although there may be many counties or districts in the same circuit, the court in each is entirely separate and disconnected from that in all the others, and its jurisdiction, within the meaning of the constitutional clause, is limited by its territorial boundaries.</p> <p>5. Criminal law—right to a speedy trial. The right to a speedy trial guaranteed by the constitution to one accused of crime, is only against arbitrary and oppressive delays, and is in nowise violated by such delays as are induced by the lapse of time intervening regular terms of court, or such as are inevitable in consequence of the amount of other criminal business having priority on the docket, or such as shall be necessary with proper efforts to procure an impartial jury and the attendance of witnesses.</p> <p>6. Same—declarations of deceased on charge 'of poisoning. On the trial of a wife on the charge of murdering her husband by poison, the declarations of the deceased, made at different times through a period of several years before his death, out of the hearing of the accused, and in nowise assented to by her or communicated to her, which are not dying declarations, nor a part of the res gestee, but expressive simply of his own state of feeling toward the accused at the time, or narratives of past events, are not admissible in evidence.</p> <p>7. Same—evidence showing motives, etc. In prosecutions for murder, as of a husband by his wife, a wide degree of latitude is allowable to the prosecution to possess the jury with all the circumstances which may reasonably throw light upon the transaction. It is hence allowable to prove the existence of facts which experience shows may operate as motives to the commission of crime, such as the expectation of pecuniary gain, express malice, the gratification of lust, etc.</p> <p>8. And it has accordingly been held competent, where the husband or wife is charged with the murder of the other, to show their mutual conduct towards and treatment of each other, as manifested by acts and words—the fact that one is engaged in an illicit sexual commerce with, or has contracted a sexual passion for, another person, etc.—but, in general, proof in these respects must not be confined to mere hearsay.</p> <p>9. Evidence—declarations out of presence of party to be affected. The exceptions to the rule, wherein the declarations of one party, not. made in the presence, or with the’ express or implied concurrence of another party, whom they affect, are admissible in evidence, are limited by the books to dying declarations,' declarations accompanied by and explanatory of facts, so as to form a part of the res gestes, evidence of general character, declarations as to present state of health, or expressive of condition of mind, etc., family pedigree and ancient boundaries, monuments and other public matters falling under the same principle.</p> <p>10. On the trial of one for the murder of her husband by poisoning, the declarations of the deceased in regard to a prior attack of some disease of a character or nature he did not entirely comprehend, and not made in explanation of his present state of health, but merely as a narrative of a past occurrence, are clearly inadmissible in evidence.</p> <p>11. Same—of motive for commission of crime. On a charge against a wife for the murder of her husband, it is competent for the prosecution to prove her unchastity in order -to establish a motive for taking the life of the deceased, but she is entitled to face and cross-examine the witnesses as to every circumstance tending to show such fact; and no fact or circumstance claimed to have such tendency, can be proved by hearsay.</p> <p>12. Same—declarations of suspicion by murdered husband. So, on the trial of such a charge, proof of the declarations of the deceased husband of his suspicion of his wife’s chastity, and his statements, made at different times, of her conduct he had witnessed with other men, tending to show her want of chastity, not communicated to the accused, and not explanatory of any present act or declaration of hers, but mere narratives of past acts, made in her absence and without her knowledge, and followed by no act of his of which they are explanatory, is clearly inadmissible. Without knowledge on her part of such statements, they could not affect her conduct, and as proof of ,her unchastity they are incompetent, as being hearsay.</p> <p>13. Instruction—expression of opinion on facts. It is not the province of the court, in a criminal case, to express any opinion upon the facts, and this whether orally during the trial, or in the form of instructions when the evidence has all'been heard. The court should state the law only, and leave the jury to judge of the facts; and especially is it objectionable for the court to express any opinion upon any combination of facts assumed or proved, which does not embrace every contrary hypothesis which the evidence tends to establish. An instruction is erroneous which is but an argument on the facts, and that in a partial view.</p>

Amos Watts, Judge, presiding. This was an action originally brought before a justice of the peace, by Leverett Varnum, Frederick Varnum and Sarah Varnum, against Eberhard Jansen, and Bertha Jansen, his wife, to recover damages to real estate caused by the digging of a ditch, whereby water was thrown from the lands of Bertha Jansen upon that of the plaintiffs, and by the building of a dam on other land of Bertha Jansen, whereby the natural flow of the water from the…

James C. Allen, Judge, presiding. This was an action of assumpsit, brought by Benjamin B. Longenecker and William H. Ingersoll, as partners, against John C. Maxwell.

William H. Snyder, Judge, presiding. This was a suit upon a promissory note, given by the defendant, Philip C. Reed, to the plaintiff, Hannah V. Colby, guardian of William A. and Henry P. Colby, for the sum of $909, bearing date December 30, 1875, and payable nine months after date, with ten per cent interest after maturity.

<p>Appeal from the Circuit Court of Effingham 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>

Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snydee, Judge, presiding. This was assumpsit, by Bernhard Wessell against John B. Schroer, John Behrmann and Henry Kramper, upon a promissory note of the defendants, dated Nov. 26, 1867, for $800, payable to the plaintiff twelve months after the date thereof. At the April term, 1876, Schroer filed the general issue, and a default was taken against Behrmann and Kramper.

<p>Taxes—courts cannot reduce assessment. On application for judgment against delinquent lands for taxes, the court has no power to hear evidence and reduce the assessment for over valuation. If property is assessed too high, the owner should, under the 86th or 97th section of the Revenue Act, apply to have the assessment corrected.</p>

David J. Baker, Judge, presiding. This was an action of ejectment. The plaintiff’s claim of title to the premises in controversy was under and by virtue of a deed thereof, made by a special commissioner, under a decree in a mechanic’s lien proceeding against the defendant.

<p>1. Heirs—liability for ancestor’s debt. Heirs are not liable for the debts of their ancestor when the latter leaves personal estate sufficient to discharge all just debts and demands against his estate, and it devolves on those seeking to charge the heir with the ancestor’s debt to allege and prove, not only the descent of real estate from the ancestor, but also either that there was no personal estate, or that it was not sufficient to pay the just debts and demands against his estate.</p> <p>2. Deed of trust—remedy to collect surplus on sale after satisfying debt secured. If the holder of a note secured by deed of trust, on a sale, bids more than enough to pay his debt, he will be legally liable for the balance of his bid the same as for any other debt, and this will not authorize the holder of a junior incumbrance on the property sold to maintain a bill in equity against his personal representative and heirs, to reach such surplus, when there is no allegation of the want or insufficiency of the personal estate of the deceased purchaser to pay all his just debts.</p>

William H. Snyder, Judge, presiding, This was a bill in chancery, by James H. Smith against Samuel Sanner, for relief against the payment of a promissory note, on the ground of usury, and for the cancellation of the same on payment of what was legally and equitably due thereon. The court below decreed the relief as prayed, and the defendant appealed.

<p>Practice in Supreme Court. Where no abstracts, briefs or arguments were filed in a capital case, this court, notwithstanding the omission, carefully examined the record, and failing to find any error, the judgment below was affirmed, fixing the time for executing the sentence of death.</p>

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

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

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of debt, brought by Charles Griffin, administrator of the estate of Joseph Griffin, deceased, against Henry Brown, Thomas H. Shepherd, Benjamin Hypes and Zeno Scott, upon a promissory note of which the following is a copy: “Lebanon, III., July 6, 1867. “On the ninth day of October, 1867, we, the trustees of the Methodist Episcopal Church in Lebanon, promise to pay to Joseph Griffin, or to his…

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

<p>1. Negligence—liability of railroad company to servant for injury. While a railroad company is required to use the highest diligence in furnishing such cars and fixtures thereto, yet it is-not an absolute insurer, and can not be held liable for defects of which such diligence would not inform it. Actual knowledge of the defect is not necessary, it being sufficient that the company might have been informed by the use of such diligence as the law imposes upon it, but when it did not know, and could not have informed itself of the defect, the company is not liable for an injury caused by such defect.</p> <p>2. If a brakeman or servant of a railway company receives an injury from a defective ladder attached to a freight car in use, knowledge must be brought home to the company, or proof made that it was ignorant of the same through negligence or want of that care which the law requires, or in other words, it must, be shown that the company either knew or might have known the defect causing the injury, to make it liable for such injury.</p>

<p>1. Money had and received—when may he recovered hack. Where a person leaves money with another with directions to apply the same as premiums on life insurance for him, the person receiving the money having no vested interest therein, the one so making the deposit may, at any time before the directions are acted upon, demand its return, and upon refusal, recover under the counts for money had and received to his use.</p> <p>2. But if money is left with an insurance agent to be applied as premiums on risks of life insurance by the agent, as a. mode of compensating him for procuring a large loan of money from the insurance company the agent represents, the agent will have a vested interest in the money, and the person so depositing the same can not, of his own volition, and without the agent’s consent, abrogate the contract, and recover back the money under the common counts in assumpsit. His rights, if any, must be enforced under the special contract.</p>

Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding. This was a suit originating before a justice of the peace, brought by Charles W. Thomas against Bernhard Stempel, to recover back money paid by the former, as master in chancery, to the latter, in excess of what was his share in moneys realized on the sale of lands in a proceeding for partition.

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

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

<p>Appeal from the City Court of the City of Alton; the Hon. Henry S. Baker, Judge, presiding.</p>

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

<p>1. Sheriff—liability for taking insufficient security on replevin bond. Where a sheriff, in accepting a surety in a replevin bond, makes inquiry of the neighbors and of reliable men who know the surety, and of the assessor, as to his circumstances, and administers an oath to the surety, the effect of which satisfies the sheriff he is good for the amount of the bond, the sheriff will not be liable upon his official bond for taking insufficient security. The officer is not an insurer of the solvency of the surety.</p> <p>2. Same—liability for not returning replevin bond. A replevin bond being taken as well for the benefit of the defendant in replevin as for indemnity to the officer, it is the imperative duty of the officer to return it. with the writ into court, so as to afford the defendant a chance to require additional security; and failing in this, the officer is liable to the defendant for any damages he may sustain in consequence of the omission.</p> <p>3. Same—liability on Ms bond. By the common law, the sheriff and his sureties are answerable on his official bond for all delinquencies, independent of the statute, and the act oi 1874 giving an action on his bond but declares what, the law was before its passage.</p>

William H. Snyder, Judge, presiding. This was an action of replevin, by Charles A. Shinkle against T. L. Cavener, for certain goods and chattels. The defendant pleaded non cepit, non detinet, property in a stranger, justification under a writ of attachment against Charles Shinkle, the plaintiff’s father, and alleging property in him, and a plea of a former recovery.

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

Tazewell B. Tanner, Judge, presiding. This was a bill filed by David Darnell, Martin Acord and Eli Smith, against the Ætna Life Insurance Company, George M. Brinkerhoff, trustee for said company, John T. Bryant, Mary E. Bryant, Catharine Bryant and William J. Morris, to foreclose a mortgage. During the pendency of the suit, David Darnell departed this life, and his administrators, John H. Corn and Anna Darnell, were substituted in his place.

<p>City of East St. Louis—extent of power to issue bonds. A clause in the charter of the city of East St. Louis, empowering the city council to borrow money not exceeding $100,000, and issue bonds therefor, applies as a limitation to the incurring of liabilities by borrowing money, and not to those incurred as a part of the current expenses of the city.</p>

Writ of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding. This action was instituted by the plaintiff in error against defendants in error, to recover the amount claimed to be due on the following promissory note: “$1500.00 Belleville, III., February 20,1874.

William H. Snyder, Judge, presiding. This was a bill in chancery, filed by William T. Coleman against Elizabeth S. Billings, Lewis B. Parsons, Catharine W. Gronau, John Gronau and Amos Atkins, for the partition of a half section of land, being the south half of section 25, township 3 north, range 9 west.

<p>1. Assignment—presumption as to date. Where a promissory note is indorsed by the payee without date, it will be presumed, in the absence of proof, that it was assigned at the date of the execution of the note, and. where the assignment of the payee is dated, an assignment by his assignee without date will, in like manner, be presumed to have been made at the same time with the prior assignment to him.</p> <p>2. Practice—excluding evidence. There is no error in excluding evidence after its introduction, when it does not tend to prove the issue, but if it tends to prove the defense interposed, it must he left for the jury to pass upon, and it is error to exclude it.</p> <p>3. Failure of consideration—notes given for lease. Where a lessee obtains possession of, and enjoys the whole of the lands leased by him, without eviction or disturbance, there can be no failure of the consideration of notes given by him for the rent. The throwing out of a strip of land not leased, by the commissioners of highways, will not constitute a failure of the consideration. If the lessee was misled by the lessor’s agent, or his own want of care in building a fence, it will not affect the rights of the lessor.</p>

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

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

<p>1. Appeal bond—right to insist on statutory bond. While it is true that a bond given on appeal from the judgment of a justice of the peace, not in substance the same as that required by statute, will bind the appellant and his sureties as a common law obligation, still, the appellee has a right to insist upon a bond in the form prescribed by the statute.</p> <p>2. Same—-form held had. A bond given on appeal from a judgment of a justice of the peace with this condition: “Now, if the said A B and 0 D shall prosecute their appeal with eifect, and shall pay whatever judgment may be rendered by the court on dismissal or trial of said appeal, then,” etc., is not in substantial conformity with the law of 1874. While the precise language of the statutory form need not be employed, the substance must be the same.</p> <p>3. Appeal—dismissal for defective bond. On motion to dismiss an appeal for want of a good and sufficient bond, the appellant may be ruled to gire a statutory bond, and failing to do so, the appeal may be rightfully dismissed..</p> <p>4. Practice—setting aside order dismissing appeal. It is discretionary with the court whether it will set aside an order dismissing an appeal, and permit a sufficient appeal bond to be filed.</p>

Amos Watts, Judge, presiding. This was a bill for partition, filed by Delilah A. Pigg, Thomas J. Pigg, Samuel Pigg and William Pigg, against Josephine Carroll, Elizabeth Carroll, Mary L. Chance, Elizabeth Rogers and Telitha C. Layson. One of the appellants, Thomas J. Pigg, claimed two shares of the real estate, one as one of the heirs at law of Thomas H. Pigg, deceased, and another as the purchaser of the interest of Sarah J. Bruff, one of the children of said Thomas H. Pigg.

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill in chancery, in the name of Valentine Rabberman as complainant, against John Hause, and Herman G. Weber, sheriff, to enjoin the collection of a judgment recovered in the St. Clair circuit court by said Hause against one Frederick Rabberman. The court dismissed the bill for want of equity, and Frederick Rabberman appealed from the order.

<p>1. Appeal—time to object to sufficiency of appeal bond. Where a party lies by for more than a year, and until the cause has passed through this court, without objection to an appeal bond given on an appeal from a justice of the peace, he can not have the appeal dismissed for the deficiency of the bond.</p> <p>. 2. Appeal bond—amendment. Where a party appealing from the judgment of a justice of the peace was allowed to amend the appeal bond by adding his name thereto, it not being to the prejudice of the opposite party, but for his benefit, it was held that the latter could not be allowed to urge the amendment was erroneous.</p> <p>8. Jurisdiction—of justice of the peace as to amount, how determined. On' the trial of an appeal from a justice’s court of an action of replevin, it is no error for the court to instruct the jury if they believe, from the evidence, that the property replevied is of greater value than $200, to find for the defendant, and in estimating the value of the property, they should consider not what it might have brought at forced sale, .but what it was worth.</p> <p>4. Same—not solely a question of law. The question of jurisdiction in a suit originating before a justice of the peace, is not solely a question of law, but one of law and fact. The value of the property in controversy in replevin is one of fact to be found by the jury.</p> <p>6. Special verdict. Our practice in this respect does not require that a special verdict shall be returned any more than in other cases.</p>

Clair county • the Hon. William H. Snyder, Judge, presiding. This was a suit by appellee against appellants, as trustees of the Lebanon Catholic Church, brought on the fourth day of November, 1876, for $199.80, claimed to be due for services for teaching school and for church services/ in which appellee recovered a judgment for that amount, and the defendants appealed.

<p>Writ of Error to the County Court of Edwards county; the Hon. J. M. Campbell, Judge, presiding.</p>

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

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

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

Cyrus Epler, Judge, presiding. This was an action of debt, upon a replevin bond given by appellants, Hunter and Hauskins, as principal and surety, to appellee, Whitfield, as constable. The bond was given in a suit of replevin for some corn, brought before a justice of the peace, by Hunter against Vaughn.

<p>1. Sale—whether sale or lease. Where a party, upon delivery of a piano, took three promissory notes from the other party for the balance of the price, to which were annexed conditions, to the first and second that the piano, for the use of which the notes were given, should remain the property of the payee, and on default of-payment it should be returned to him, and to the third that upon payment of it and all prior notes given for the use of the piano, the same should become the property of the maker of the notes, it was held, that the transaction must be regarded as a sale of the instrument.* </p> <p>2. Rescission of contract—by taking back property sold—refunding money paid. Where personal property is sold, a part of the price paid, and notes given for the balance, under a contract that upon default in the payment of either note the property shall be returned to the seller, with no provision for the return of the payments made, and the vendor, on failure to pay the first note, takes possession of the property, with the consent of the purchaser, and surrenders his notes, there will be no rescission of the contract. The retaking of possession in such case is but in accordance with the contract, and the vendor will not be liable to refund the payments made to him.</p> <p>3. Recoupment. Where the vendor of a piano takes possession of the same for default of payment, under a contract authorizing him to do so, and with the consent of the purchaser, if he were liable to refund payments made he would have the right to recoup or set-off any damages sustained by him by the failure of the purchaser to perform the contract. In such case he might recoup the value of the use of the instrument, and any depreciation in its value growing out of its use.</p> <p>4. Practice—defense in suits originating in justices’ courts. The defendant in a suit originating before a justice of the peace, has the right, without formal pleadings, to urge any defense he may have on the trial, in the circuit court., on appeal.</p>

Cyrus Epler, Judge, presiding. This was' assumpsit, by “ The Davis Sewing Machine Company” against John Buckles, on his guaranty of a promissory note in the words following: “$265.75 Jerseyville, November 6, 1872.

M. C. Crawford, Judge, presiding. This -was an action on the case, by Jacob Ullman against The Grand Tower Manufacturing and Transportation Company, to recover the value of goods delivered by the plaintiff to the defendant, at its depot at Murphysboro, in January, 1873, to be transported to Cairo, in this State, which were destroyed by fire in the defendant’s warehouse or depot before they were shipped. The plaintiff recovered, and the defendant appealed.

<p>1. Will—construction—inconsistent clauses. If two parts of a will are totally irreconcilable, the subsequent part is to be taken as evidence of a subsequent intention and must prevail; but this rule applies only in those cases where the intention of the testator can not be discovered, and the two provisions are so totally inconsistent that it is impossible for them to coincide with the general intention of the testator.</p> <p>2. Same—intention governs in construction. The great and leading principle in the construction of wills is, that the intention of the testator, if not inconsistent with the rules of law, shall govern, and the intention is to be ascertained from the whole will taken together. The courts, if possible, will adopt such construction as will uphold all the provisions of the will.</p> <p>3. Same—life estate not defeated by subsequent devise of fee. Where a testator clearly manifests an intention to give his wife a life estate in all his real estate, that intention will not be defeated by a devise of certain lots in the next clause to a daughter, in fee simple, but the wife will take a life estate in such lots, and the daughter the remainder in fee simple, thus giving effect to each clause of the will. Where the intention of the testator is incorrectly expressed, the court will effectuate it by supplying the proper words.</p> <p>4. Where a testator devised to his wife, during her natural life, the possession, use, control, rents, issues and profits of all the real estate he might own at the time of his death, and also all his personal property and moneys, to have said personalty as her own, with authority to sell and dispose of the same as she might deem best, “ but subject to the payment of the bequest to C D, hereinafter made,” and in the next clause devised and bequeathed to O D two of his lots “in fee simple,” “and the sum of $150 yearly as long as she lives,” etc., it was held, that the words in the first devise, “ subject to the payment of the bequest to C D,” applied to the personalty and related to the payment of the sum of money bequeathed to C D, and that the gift to the wife was not subject to the bequest to C D, but subject to its payment.</p> <p>5. Same—construction. A clearly expressed devise of a life estate, to a wife, of all the testator’s lands will not be defeated by subsequent clauses in the will in which two lots are devised to a daughter without reference to the wife’s prior estate, and others to other parties, subject to her life estate. The difference in phraseology in the subsequent devises, although a circumstance favoring the construction that the daughter took an estate with a right to immediate possession as to the two lots devised to her, is not sufficient to control what appears to be the manifest intention.</p> <p>6. New trial—in ejectment. Where a new trial is granted in an action of ejectment, under the statute, upon the payment of costs, and the costs are after-wards paid, the judgment in effect will be vacated, and there is no error in having a second trial without a formal order vacating the prior judgment after the costs are paid.</p>

<p>1. Notice—of unrecorded mortgage. Any fact or circumstance that tends to give notice or informs a party that there is an incumbrance upon land, is sufficient to charge him with notice of its existence. Where such information comes to the knowledge of a purchaser or subsequent incumbrancer, the law requires 'him to pursue it until it leads to notice.</p> <p>2. Same—from recitals in deed under which he claims. Where an administrator’s deed for land sold under decree of court recited the decree, which required the sale to be made for ten per cent cash in hand, and the balance on a credit, of twelve months, taking the purchaser’s note, secured by mortgage on the premises sold, and the deed also recited that the purchaser had complied with the terms of sale, it was held, that such recitals in the administrator’s deed, which was recorded, was sufficient notice to any one dealing with such purchaser of the existence of an unrecorded mortgage given by such purchaser to the administrator.</p> <p>3. Actual notice, or circumstances which will excite suspicion, and which, when pursued to the source to which they point, lead to notice, is equally sufficient to charge a purchaser with notice as an recorded instrument.</p>

Amos Watts, Judge, presiding. This was an action of assumpsit, by Daniel P. Collins against John S. Harvey and Sarah B. Harvey, upon a promissory note, made by the defendants to Isaac McClelland, for the sum of $1519.50, payable six years after date, and assigned by the payee to the plaintiff. The defense was, payments made on the note, at various times. The note itself showed various credits indorsed, but others were claimed.

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

<p>1. Parties. A bill to foreclose a mortgage should be brought in the name of the equitable owner of the notes, and not in the name of the payee for his use, but the objection that it is brought in the payee’s name, should be urged in the court below to afford an opportunity to obviate it by amendment.</p> <p>2. Purchaser—whether chargeable with mortgage of which he has no actual notice. The record of a mortgage, given by one having only an equitable title under a bond for a deed which is not recorded, is not notice to a subsequent purchaser of the legal title from one in possession of the land, as such purchaser’s title is not derived through the title of the mortgagor, and he will not take subject to the mortgage, although it is recorded.</p> <p>3. Where A, the owner of lots, sold the same to B, giving a bond for a deed upon payment, of the notes given for the purchase money, and B sold the same to G, assigning A’s bond for a deed, and taking C’s notes and mortgage on the lots securing their payment, which mortgage was duly recorded, and C afterwards sold the lots to D by transferring A’s bond to him, and A, on-the surrender of his bond given to B, made a warranty deed to D for the lots, who took immediate possession, and afterwards sold the property to E, who had no notice of the facts or of the existence of A’s bond or that C had been in possession, and paid the purchase money, it was held that E was not chargeable with notice of the equitable title of G from the record of his mortgage to D, the bond never having been recorded, and that the mortgage could not be foreclosed as against him. Had E known, when he purchased, that 0 was in possession when he sold to D, perhaps it would have been his duty to have searched the record and inquired what claim C had to justify his possession.</p> <p>4. Mortgage—what estate subject to. Although a bond for a deed to land may provide for a forfeiture for non-payment, yet if the vendor does not declare one, the holder under the bond has such an equitable estate as will pass by mortgage from him.</p>

James C. Allen, Judge, presiding. This was an action of assumpsit, brought against the Board of Supervisors of Lawrence County by John D. Sage, who sued for the use of William J. Wise, to recover upon a number of county orders. A trial resulted in a judgment for the plaintiff, from which the county appealed.

<p>Appeal from the County Court of Saline county; the Hon. Richard N. Warfield, Judge, presiding.</p>

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

<p>1. Practice — affidavit of claim — whether its sufficiency may be questioned. When a defendant files no plea, and makes no application for leave to file a plea, but suffers a default to be taken, he can not assign for error the refusal of the court to strike the plaintiffs affidavit of claim from the case.</p> <p>2. Assessment of damages on default—by whom. Upon default the statute gives either party the right to have the damages assessed by a jury, and it is error to refuse a jury when asked by the defendant.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was a bill filed by appellee, the widow of Samuel Stookey, asking the assignment of dower to her in certain real estate which her husband, owning during coverture, conveyed to appellant by deed in January, 1872. Samuel Stookey, the husband of appellee, died in September, 1875. On October 11, 1875, appellee made a demand on appellant that her dower in the premises be assigned.

<p>Appeal from the Appellate Court of the First District; the Hon. Theodore D. Murphy, presiding Justice, and Geo. W. Pleasants and J. M. Bailey, Justices.</p>

Theodore D. Murphy, presiding Justice, and Geo. W. Pleasants and J. M. Bailey, Justices.

Amos Watts, Judge, presiding. This is an action, brought by Luttrell, against the insurance company, upon a policy covering a period of five years from November 17, 1873, by which the plaintiff was insured in the sum of $1400—on his dwelling house $800, „on the barn and shed adjoining $300, on the grain therein $50, the hay therein $35, and on dwelling house number two $200.

William H. Snyder, Judge, presiding. This was an action of replevin, begun before a justice of the peace, by the appellant company, against the appellee, for the possession of a sewing machine. The case, after hearing in the justice’s court, was brought to the circuit court by appeal. A trial was there had, which resulted in a judgment for the defendant, and plaintiff appeals.

Amos Watts, Judge, presiding. This is forcible detainer, brought before a justice of the peace, by appellant against appellees, for the possession of real estate occupied as a homestead by them at the time of the making of the mortgage in question, and such occupation was continued until the trial in the circuit court, to which the proceeding was taken by appeal. In that court, a jury being waived, the trial was by the court.

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

Monroe C. Crawford, Judge, presiding. This was an action brought by appellee against appellant, before a justice of the peace, and taken by appeal to the circuit court, where a trial was had before the court alone, who found for the plaintiff, and rendered judgment in his favor for $140.

<p>1. Election—must be held at'proper time and place. It is essential to the validity of an election that it be held at the time and in the place provided bylaw.</p> <p>2. Where the time and place of an election are fixed by law, it has been held that an omission to give the proper notice of the election will not vitiate an election held on the day appointed by the law; but where the law fixes no time or place of holding the same, leaving that to be determined by some authority named in the statute after the happening of some condition precedent, it is essential to the validity of the election that it be called, and the time and place thereof fixed, by the-very agency designated by law, and none other.</p> <p>3. Same—must be ordered by proper authority when not fixed bylaw. Under the law for the incorporation of cities and vilages, that on a petition of oneeighth of the legal voters of a city, the mayor and city council shall submit the question of incorporation under the general law to a vote, and appoint a time and place or places at which such vote shall be taken, and designate the persons to act as judges at such election: Held, that the mayor alone has no right to call such election, although the councilmen may neglect their duty. The remedy is by mandamus against them for any unreasonable non-pevformance of duty in this respect.</p> <p>4. Same—when void can not he ratified. Where an election, to determine whether a city will become incorporated under the general law, has been called by the mayor alone, without the consent of the council, and results in favor of incorporating under such law, a subsequent ratification by the council in canvassing the votes and passing a resolution approving the action of the mayor in giving notice of the first annual election under the general law, and the registry by the Secretary of State of the city as organized under such law, will not cure the defective call and ratify the election held under it. The election being void is incapable of being ratified.</p> <p>5. Same—remedy. The right given by statute to contest an election for the incorporation of a city, under the general law, does not operate to prevent the remedy by quo warranto against officers elected after such election, when such election is void for not being called according to law.</p>

Clair county; the Hon. William H. Snyder, Judge, presiding. This was an action of assumpsit, by Andrew J. Gillespie against Joseph Mulhall and Samuel Sealing, for money advanced and paid out at their request. The partnership or joint liability of the defendants was not put in issue by plea verified.

This was an application in this court by Thomas Winstanley, as city treasurer of the city of East St. Louis, for a writ of mandamus against Herman G. Weber, county collector of St. Clair county, to compel him to pay over to the relator moneys collected by him and taxes belonging to the city of East St. Louis. The defendant’s plea presented the question of the validity of the relator’s election.

Writ of Error to the Circuit Court of Franklin county; the Hon. Monroe C. Crawford, Judge, presiding. Plaintiff was the wife of defendant, and had instituted in the circuit court a suit against him for a divorce, (upon a charge of adultery) and for alimony.

<p>1. Subrogation—under deed of trust. Where a third person pays a debt which is secured by mortgage, at the request of the mortgagor, but takes the note and mortgage as a security for the money thus advanced, he will, in equity, be entitled to be subrogated to the rights of the original creditor, and to have the property sold under the power in the mortgage or trust deed, in the same manner the mortgagee might have done in the absence of payment to him.</p> <p>2. Deed of trust—setting aside sale under, on ground, of payment. Where a husband, after giving a deed of trust, conveys the property to another in trust for his wife, and makes an arrangement with a brother for the payment of the debt, when he absconds to avoid a criminal prosecution, and the property is afterwards sold by the trustee, and the wife receives the surplus of the proceeds of the sale, but some seven years afterwards files her bill to have the sale set aside on the ground of payment of the debt by the brother of her husband before the sale, alleging that she did not know of the payment until a short time before filing her bill, the proof must be clear that the debt was paid and the lien extinguished, and exclude every reasonable probability that the note and trust deed were taken by the brother at the time as security for the money advanced by him, in order to justify the court in setting aside the sale as to an innocent purchaser, after such a lapse of time.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.</p>

Clair county; the Hon. William H. Snyder,,. Judge, presiding. This was an action of ejectment by Francis Lavalle, supervisor of the village of Cahokia, against Nicholas Strobel, for lot 303 of the Cahokia commons, which lot embraces the entire plat of Illinois City, which consists of 964 lots of equal size, numbered from 1 to 964, its streets, avenues, alleys, public square, a Protestant and a Catholic graveyard, located in the town plat.

This was an action of assumpsit, brought by Uiccolls, for the use of Williams & Burr, against Foster. A trial resulted in a verdict and judgment in favor of the defendant. The plaintiff appealed.

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

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

W. W. Heaton, Judge, presiding. This bill was to foreclose a mortgage made by John A. Melendy, his wife joining in the execution, to the Racine and Mississippi Railroad Company.

<p>Jurisdiction— whether city, under its charter, has exclusive jurisdiction over offenses. Any exclusive jurisdiction, given to any city by its charter, before the adoption of the constitution of 1870, over certain offenses within its limits, has been taken away and abrogated by section 29, article 6 of that constitution, which requires that all laws relating to courts shall be general and of uniform operation, and the jurisdiction, powers, etc., of all courts of the same class or grade, so far as regulated by law, shall be uniform. Whenever jurisdiction of such offenses is conferred by statute upon circuit courts, it operates to take away the exclusive jurisdiction before conferred upon municipal corporations.</p>

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

Joseph E. Gary, Judge, presiding. At the May term, 1877, of the Superior Court of Cook county, S. P. Walker and others presented to that court a petition for leave to file a bill of review, stating that about November, 1867, petitioners (heirs of J. Knox Walker, deceased,) filed their bill in chancery against Robert M. Douglas and others, (heirs of Stephen A. Douglas, deceased,) asking the specific performance of a contract made between Stephen A. Douglas and J. Knox Walker,…

Samuel M. Moore, Judge, presiding. The appellant, Cornelius Hogan, filed a bill against ¡the appellee, Ellen Hogan, his wife, for the specific performance of the following contract: “Chicago, December 30, 1871. “ I hereby agree to deed and convey to my husband, Cornelius Hogan, in his own name, forever, the certain piece of real estate, to-wit: sub-lot 10, of lot 4, in block 21, in the Canal Trustees’ Subdivision of the City of Chicago, Illinois, providing when my husband,…

<p>1. New trial—finding from the evidence. Where the two parties are the only witnesses as to a disputed fact, as, the guaranty of a note by the payee, and their testimony is conflicting, the one affirming and the other denying the guaranty, the finding of the court in favor of the contract of guaranty will not be disturbed by this court. The court trying the case has facilities for arriving at a correct conclusion that this court does not possess in such a case.</p> <p>2. Burden of proof—when execution of guaranty is put in issue. Where a defendant, sued upon the guaranty of a note, denies the execution of the contract of guaranty, under oath, the burden of proof devolves upon the plaintiff to establish the contract.</p> <p>3. Parol evidence—to prove a guaranty of note. Where a written guaranty of a note is denied under oath, parol evidence is admissible to prove the contract of guaranty. Any evidence tending to prove the contract is proper.</p>

<p>Writ of Error to the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.</p>

U. J. Pillsbury, Judge, presiding. This was an action of assumpsit, brought by George J. Shephardson, against Frank A. Thompson, David Rankin and Charles E. Henderson, for corn sold and delivered by the plaintiff to the defendants, with the common counts. The • defendants Rankin and Henderson pleaded the general issue, and a sworn plea denying joint liability. Thompson was defaulted.

<p>Writ of Error to the Circuit Court of Livingston county; the Hon. C. R. Starr, Judge, presiding.</p>

<p>1. Guaranty—consideration for, after execution of note. Where the payee of a promissory note offers to assign the same to his creditor in payment of Ms debt, which the creditor refuses to accept unless he will procure the guaranty of a third person, and such third person, at the payee’s request, does guaranty the payment of the note, and the creditor then accepts the note in payment of his debt, the contract of guaranty is between the creditor and the person making the guaranty, and the acceptance of the note, in payment of the debt, is a sufficient consideration to support the guaranty.</p> <p>2. Practice—advancing cause on the docket. Where a defendant goes to trial, without objection, before the cause is reached on the regular call of the docket, under the five-days rule, and interposes all the defense he claims to have, he waives all objection to advancing the cause and trying it out of its order.</p>

W. W. Heaton, Judge, presiding. This was an application made by William Ferris, appellee, for the removal of Sarah E. Ferris, administratrix of the estate of James Ferris, deceased, William Ferris being a creditor of the estate. Notice of the application was published, which, it is contended' by appellant, is insufficient.

<p>1. Parent and child.—liability of. parent for necessaries furnished his child. An express promise, or circumstances from which a promise can be inferred, is indispensably necessary in order to bind the parent for necessaries furnished Ms infant child by a third person.</p> <p>2. Where an infant daughter, without her father’s knowledge, went to the house of the plaintiff, where her mother was staying wrongfully and against the husband’s wish, to see her mother and take her some clothes, and the plaintiff would not .let her return, but hid her away in a bedroom, and when the father went in search of her, told him he did not know where she was, it was held, that the plaintiff was not entitled to recover of the father for the board and lodging of the daughter.</p> <p>3. Husband and wife—liability of husband on account of wife. In the absence of any special promise of the husband to pay for the board and lodging of his wife, living apart from him, to a third person, he will not be responsible therefor, unless she was living separate from him by his consent, or his conduct was such as to justify her in leaving his bed and board.</p> <p>4. Where a wife left her husband’s house without his consent, and without justification by his conduct towards her, and- went to that of the plaintiff, with her nursing babe, and the husband made repeated efforts by himself and through others to procure her return home, and tried to induce the plaintiff to assist him in the same purpose, but the plaintiff made no endeavor to persuade her to go back to her husband, and forbade the husband coming to his house, it was held, that in the absence of any express agreement to pay, the husband was not liable to the plaintiff for the board and lodging of the wife and child.</p> <p>5. Same—husband’s liability on conditional promise. Where a wife leaves her home without the fault or misconduct of her husband, and against his wishes, and takes board and lodging with a stranger, and the husband, in order to procure her return, promises,to pay her board if she will come back to his house, which is not done, and he notifies the party keeping her that if she does not return by a given day, he will not pay her board, such promise is conditional, and can not be enforced without a performance of the condition on which it is made.</p>

H. H. Cody, Judge, presiding. This was an action of forcible entry and detainer, brought by Cornelia Manley, against V. W. Panton, before a justice of the peace, and appealed by the defendant to the circuit court, where the appeal was dismissed for want of prosecution.

<p>1. Rescission—conveyance obtained through fraud. Where a person, having gained the confidence of the owner of valuable real estate, by false representations and working upon his fears, such owner being over seventy years old, and infirm in mind and body, induced him and his wife to convey all his property to him, for the expressed consideration of giving the grantor a support and the payment of $200 in funeral expenses, but under the promise and assurance that he would immediately convey the same to the grantor’s wife, representing that the grantor’s children and heirs were about to take steps to have a conservator appointed, and the grantee refused to execute the conveyance to the grantor’s wife, and paid nothing for the land, but in a few days after sold and conveyed the property to the heirs of the grantor for §1500, they having notice of the facts by the original grantor’s possession, if not otherwise, it was held, that no court could sanction such a fraud, and all the conveyances were held properly set aside on bill filed by the original owner so defrauded.</p> <p>2. Notice—of equity, by possession. Where the grantors of real estate remain in its possession, all persons purchasing the same from the grantee are chargeable with notice of all the claims of the grantors, both legal and equitable, and if the original conveyance is procured by fraud and deceit, such purchasers are held to notice of such fact, and can not be protected as innocent purchasers.</p>

<p>1. Homestead—release must appear in certificate of acknowledgment. Under the act relating to conveyances, in force July 1, 1872, no deed shall be construed as releasing or waiving the right of homestead unless it shall contain a clause to that effect, and the certificate of acknowledgment shall recite “including the release or waiver of the right of homestead,” or contain other words expressly showing an intention to make such release or waiver. Without such words in the certificate of acknowledgment as to both husband and wife, the homestead will not be released.</p> <p>2. When a deed of trust executed by husband and wife in 1873, contained a clause expressly waiving and releasing all right and benefit of homestead in the premises, and the certificate of acknowledgment as to the husband made no mention of the release and waiver of the homestead, though it. did fully as to the wife, it was held insufficient to release the homestead on account of the defect in the certificate as to the husband.</p> <p>3. Courts have no rightful authority, by mere construction, to aid the defective execution of a power given or created exclusively by statute, nor to dispense with those formalities which the legislature has seen fit to provide to secure its due execution. In order to waive or release the homestead right secured to both husband and wife, the mode prescribed by statute must be strictly complied with, and no subtle construction ought to be adopted to defeat the policy of the law.</p> <p>4. Same—as to nature of the indebtedness. Where the defendant in an action of forcible detainer, brought by the purchaser under a deed of trust, showed that he was the head of a family and residing upon the premises when the deed of trust was executed by him and his wife, and the continued occupancy as such ever since, and the plaintiff, in rebuttal, showed that a small portion of the money mentioned in the notes secured by the trust deed was used to take up a previous incumbrance on the premises, and the balance of the money paid to defendant’s son, by his direction, it was held that this evidence fully warranted the court in finding the indebtedness secured by the trust deed was not incurred either for the purchase or improvement of the property.</p>

Joseph E. Gary, Judge, presiding. This was a garnishment proceeding, brought by the Excelsior Stone Company, against Robert Meadowcroft, a banker, to garnish any .moneys, credits, etc., belonging to Francis Agnew, against whom the said company had recovered a judgment, an execution whereon had been returned “ no property found.” The answer of Meadowcroft to the original interrogatories filed stated explicitly that he had no property, credits, etc., in his possession…

Hiram H. Cody, Judge, presiding. This is an appeal from an order of the court disallowing certain items in the account of the appellant, Allen, as administrator of the estate of Robert Groch, deceased. It appears that Robert Groch, in his lifetime, gave a chattel mortgage on a large lot of brick to one Stenger, to secure the payment of a note of $6,500, dated October 12, 1869.

<p>1. Appeal—;jurisdiction. Where a defendant appeals from a judgment rendered against him by a justice of the peace, by filing his appeal bond with , the clerk of the circuit court, and no transcript of the proceedings in the justice’s court is filed in the circuit court, the latter court will have no jurisdiction of the subject matter, and no power to dismiss the appeal on the appearance of appellee, for want of prosecution, in the absence of appellant, and render judgment for damages against the latter and for costs.</p> <p>2. Same—dismissal when all the parties are not brought into court. Where an appeal from a justice of the peace is perfected before the clerk of the circuit court, and no summons and alias summons are issued and returned not found, and the appellee has not entered his appearance in writing ten days before the commencement of the term, or appeared at a prior term, it is error to dismiss the appeal for want of prosecution, when reached on the docket-, on motion of the appellee.</p>

<p>1. Appeal—jurisdiction when parties appear and go to trial. Where an appeal from a justice of the peace is perfected by filing bond in the office of the circuit court, and the papers and transcript filed, if the parties voluntarily appear in the circuit court during term time, and, without objection, waive a jury, and go to trial without any service of process on the appellee or entry of appearance, in writing, ten days before the term, the court will have jurisdiction, and its judgment will be valid and not even erroneous.</p> <p>2. Burden op proof—to show warranty. Where the purchaser of an animal resists payment of the price agreed to be paid therefor, upon the ground of a warranty of soundness, and a breach of the warranty, the burden of proof is upon him to show the warranty.</p>

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

<p>1. Mechanic’s men—improving street. The statute gives no lien on a lot for curbing, grading and paving the street in front of the same, though done under contract with the owner of the lot. It is given only for labor and materials furnished for the “building, altering, repairing or ornamenting any house or other building or appurtenance thereto.”</p> <p>2. Same—-agreement to give a lien. If a party seeks to enforce a lien upon a lot, for labor and materials furnished in the improvement of a street bounding the same, under a contract with the owner of the lot that he shall have such lien, he must show in his bill or petition that such agreement was in writing, as no verbal agreement to that effect can be enforced, when the statute fails to give a lien.</p>

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

<p>1. Attorney’s men on judgment for fees. An attorney at law has no lien upon a judgment for his fees in the litigation resulting in its recovery.</p> <p>2. Same—lien on papers, lost by their surrender. Even though an attorney at law has a lien on papers placed in his hands to be used in a suit, for his fees, possession of such papers is indispensable, and if he voluntarily surrenders them, his lien is gone.</p> <p>3. Estoppel—by not giving notice of claim. When a debtor makes an assignment of a claim then in litigation to a receiver, pursuant to an order of court, and his attorneys are present at the examination of the debtor, and assist in making the assignment, and give no notice of any claim or secret lien upon the matters assigned for their fees in procuring a decree for its payment, such attorneys will be estopped from subsequently setting up any right to the money when collected under the decree.</p> <p>4. Assignment—debtor making cannot appropriate proceeds differently. Where a debtor, under a decree of court, makes an assignment of a claim for money then in suit, to a receiver, for the benefit of his creditors, this will pass all his interest in a decree afterwards obtained in his name for the money due on such claim, and if he appropriates the money in the payment of his attorneys, he becomes liable in equity for its repayment to his creditors.</p>

William Brows, Judge, presiding. Huette, a creditor of Maher, caused Maher to be arrested as his debtor, charging him with fraud and with a refusal to surrender his property in satisfaction of process for the collection of Huette’s debt. Maher made application to the county court, under the statute in relation to insolvent debtors, for a discharge. An issue was formed as to the truth of the charges against Maher, which was tried by a jury.

E. S. Williams, Judge, presiding. This was originally a bill filed by Elizabeth Haas, praying for an accounting, and injunction restraining the sale of certain real estate under a power contained in two certain deeds of trust executed by the appellants, to secure indebtedness to the appellee.

<p>Highway—when party is estopped from disputing legality of road. "Where a party over whose land a road is laid out by commissioners of highways accepts the money awarded to him for damages for the land taken, removes his fences, giving possession of the land, which is appropriated, worked and traveled as a highway, he will be estopped from calling in question the validity and legality of the road, or the proceedings establishing the same. The acceptance of damages operates as a waiver of whatever errors may have existed in the proceedings.</p>

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

<p>1. New trial—finding from evidence. Where the evidence, as to the disputed facts of a case, is contradictory, it is for the jury to determine which side is most worthy of belief, and their finding in such a case must settle the controverted facts.</p> <p>2. Cross-examination—reading books to medical expert to test his knowledge. Where a physician, as a witness, testifies to the symptoms of a disease of which a person died, whose life was insured, and pronounces it delirium, tremens, induced by the use of intoxicating liquors, paragraphs from standard authors, treating of that disease, may be read to the witness, and he asked if he agrees with the author, on the cross-examination, as one of the means of testing his knowledge, and this is, in no just sense, reading such books to the jury. Great care should, however, be taken by the court to confine such cross-examination within reasonable limits, and to see that the quotations" read are so fairly selected as to present the author’s views on the subject of examination.</p>

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

<p>1. Agency—when payment to agent is good. Payments made to an agent are good and obligatory upon the principal in all cases where the agent is authorized to receive payment, either by express authority, or by that resulting from the usage of trade, or from the particular dealings between the parties.</p> <p>2. Where a person procured a loan of money from a party living some distance away in the country, on deed of trust security, taking one of the notes payable to himself, and fixed the terms of the loan, and the proof showed that such person for a number of years was the general agent of the lender in the city to loan and collect moneys for him, and that such person furnished him with statements of moneys received on his account and reinvested or paid to him, and that several of the payments made by the borrower had been paid to him by such agent, and various payments of interest after the maturity of the debt, it was held, the principal was bound by subsequent payments made to such agent, without notice given by him to the borrower not to pay to him.</p> <p>3. Same—when special. The authority of an agent being limited to a particular business, does not make it special; it may be as general in regard to that as if its range was unlimited.</p> <p>4. Same. The act of a general agent, or one whom a man puts in his place to transact all his business of a particular kind, will bind the principal - so long as the agent keeps within the scope of Ms authority, though he may act contrary to Ms private instructions.</p>

N. J. Pillsbury, Judge, presiding. This was an action of replevin, brought by Stofferan against Moriarty. The property claimed consisted of a pair of mules and a mare. Stofferan sold the property to Moriarty at the price of $310, on a credit' of one year, and to secure the payment of the price accepted a promissory note, signed by Moriarty and McInerny.

John G. Rogers, Judge, presiding. This was a petition for mandamus, filed in the circuit court of Cook county, to compel the board of auditors of the town of Lyons to audit and certify the amount due on a certain judgment, recovered by appellees against the town, in the Superior Court, on the 7th day of July, 1870, for $6749 and costs of suit.

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

John G. Rogers, Judge, presiding. This was an action of replevin, brought by Carrie Seibold, against Caroline Klein, for a lot of furniture, consisting of two easy chairs,, one sofa, four upholstered chairs, one bureau, one extension table, a gold watch and chain, a silver pitcher, six silver knives and six silver spoons and one picture. The property not being replevied, the suit proceeded in trover.

John G. Rogers, Judge, presiding. This was an action of forcible detainer, brought by Patrick Sanders against Charles Creighton, before a justice of the peace, for the possession of certain real estate in the city of Chicago, and taken by appeal to the circuit court, where a trial was had resulting in a verdict and judgment in favor of the plaintiff.

John G. Rogers, Judge, presiding. This was an action of trespass, brought by the appellee against the appellant, for the seduction of plaintiff’s daughter, Catharine Steileu.

<p>1. Practice—affidavit of meritorious defense. An affidavit filed with a plea, that the defendant verily believes he has a good defense to the suit upon the merits, to the whole of the plaintiff’s demand, being in conformity with the statute, is a sufficient answer to a motion for a speedy trial of the cause out of its order on the docket, but if the defendant files another affidavit in answer to the motion, setting up the facts relied upon as a defense, the burden is thrown upon him to state such facts as the court can see constitute a meritorious defense.</p> <p>2. Same—leave to file additional plea. Where sufficient cause is shown, by affidavit, to file an additional plea, verified by affidavit, to put in issue the fact of the guaranty of the note, it is an abuse of discretion not to allow it.</p> <p>3. Indorsememt—whether as guarantor or indorser of note. The indorsement of a note in blank by a third party, raises a presumption only, that it is intended thereby to assume the liability of a guarantor, which may be rebutted by proof that the real agreement between the parties was different.</p> <p>4. Evidence—to show character of liability on blank indorsement. A third person who indorses a note in blank before its delivery to the payee, may show by parol evidence, in a suit by the payee, that, by express agreement of the parties, he signed his name as indorser, and not as guarantor, and that the payee received the note with the full understanding that such person was an indorser.</p>

Joseph E. Gary, Judge, presiding. This was an action of covenant, brought by Lander, against the Brewers’ Insurance Company of Milwaukee and Ryan. A summons was issued to the sheriff of Cook county.

N. J. Pillsbury, Judge, presiding. On the 7th day of August, 1873, one Sophia L. Bogart died, leaving three surviving children and only heirs at law, to-wit: Laura L. Olney (wife of Ransom Olney), Ferdinand C. Howe, and Alfred S. Howe. She died at the residence of her daughter, Laura L. Olney, at Pontiac, Illinois.

<p>1. Deposition—-formal objections waived by going to trial without motion to suppress. Merely formal objections to a deposition are waived by a failure to move to suppress the same before-the trial, as, where the dedimus names the commissioner as W. H. Miner and the notice describes him as N. H. Miner, before whom it is in fact taken.</p> <p>2. Same—misdescription of note in interrogatory. A misdescription of the note sued on in an interrogatory of a deposition, as to the rate of interest, describing it as bearing ten per cent instead of twelve, is not a sufficient variance to exclude the answer as evidence, where it is apparent that the note referred to in the answer is the one in suit.</p> <p>3. Practice—finding propositions of law arising in case. Where the plaintiff is entitled to judgment if his testimony is the most credible, and the defendant is also entitled to judgment if his evidence is believed, depending upon the facts as to the defense, it is not error for the court„trying the case without a jury, to refuse to decide whether the defendant’s propositions submitted contain correct principles of law, if the finding can not change the judgment upon the facts.</p>

John G. Rogers, Judge, presiding. This was an action of trespass, commenced before a justice of the peace by Myers against the Callaghans and one McLane. Judgment was rendered against all the defendants. An appeal was taken to the circuit court by all the defendants except McLane, and upon trial in that court judgment was recovered against those joining in the appeal.

Writ of Error to the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding. At the June term, 1877, of the Knox county circuit court, William H. Beasley was indicted for the crime of murder, in producing an abortion on Mattie Naslund from the effects of which she died.

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

N. J. Pillsbury, Judge, presiding. This was replevin, by appellant against appellee. No question arises upon the pleadings.

<p>Change of venue—an information can not be to circuit court. As an information for a misdemeanor can be commenced and prosecuted only in the county court, it is error, on granting a change of venue by the county court, to send the cause to the circuit court of some other county, and error for the latter court to proceed with its trial.</p>

<p>1. Tender—of amount due on contract, and costs in suit before justice of the peace. In an action before a justice of the peace to recover unliquidated damages .for the breach of a contract, express or implied, the defendant has the right, under sec. 61, ch. 79, Rev.-Stat. 1874, to make a tender of the sum due, and costs that have accrued, and if not accepted, deposit the same with the justice, at or before the trial, in bar of any costs subsequently made.</p> <p>2. The object of the law, as it now exists, in relation to tender is, to provide for a tender in all cases of either tort or contract, where a pecuniary compensation is sought to be recovered, and thereby discourage and prevent unnecessary and vexatious litigation, and such object should not be defeated by any narrow and constrained construction of the several enactments.</p> <p>3. Former decisions. Since the cases of Cilley v. Hawkins, 48 Ill. 308, and Gregory v. Wells, 62 id. 232, holding a different rule, the statute has been changed, as above indicated.</p> <p>4. Contract—right to pasture under contract. Where a party, in the early part of the fall, contracts for the privilege of grazing his cattle upon the blue grass pasture of another, and no time is specified for the occupancy of the pasture, or when to take the cattle out, and the owner of the cattle puts them on the pasture in October, and about the first of December takes them out, for the accommodation of the owner of the pasture, for a few days, so that they may not break into his corn field before the corn is gathered, this will not deprive the owner of the cattle of the right to turn them in again, especially where there is no evidence that the pasture had been grazed as closely as is customary at that season of the year.</p> <p>5. Instruction—not supported by evidence, and assuming facts. It is error to give an instruction denying a party’s right, upon an assumed state of facts not shown by the evidence, and calculated to give the jury to understand that, as a matter of law, the party under the contract was bound in a certain way not shown by the evidence.</p> <p>6. New triad—misdirection to the jury. If an objectionable instruction is given, and its natural effect is to mislead the jury, and it appears probably to have done so, the verdict so induced will be set aside.</p>

John A. Jameson, Judge, presiding. This was an action of ejectment, to recover the possession of certain premises in Cook county. On the 25th day of November, 1874, a trial was had, and appellee, the defendant in the action, was found not guilty and judgment rendered against appellant for costs.

<p>1. Sale—-fraud in not disclosing patent defects. A vendor of an engine which has been through a fire is not bound to disclose the fact of cracks in the bed which are visible on inspection, where the buyer'examines the same, and the vendor does nothing to conceal the defects or prevent the purchaser from detecting them; and for a failure to make such disclosure he can not be held guilty of a fraud.</p> <p>2. It is only concealed defects, known to the seller, that he is bound to disclose to the buyer. In the sale of a second hand engine the seller is not guilty of a fraud in not disclosing the fact that it had before been subjected to a fire, when he had, before the sale, caused the same to be overhauled and repaired so as to make the same able to perform such service as he represented to the buyer, where the proof does not show any material injury caused by the fire, and the purchaser, before the sale, has the same examined by an experienced engineer, though on a cloudy day and in a room indifferently lighted. The fact the purchaser would not have bought had he known the engine had been through a fire, will not change the rule.</p>

<p>1. Error—presumption in favor of judgment. Unless it is impossible that the damages recovered by a plaintiff in an action of replevin, could have been assessed under any competent evidence, in the absence of a bill of exceptions it will be presumed that the evidence heard justified the judgment rendered.</p> <p>2. Damages—measure of, in replevin for detention by defendant. The statute giving a plaintiff, on recovery in replevin, the right to damages for the wrongful detention of the property by the defendant, authorizes not only compensation for any deterioration in the value of the goods replevied while in the hands of the defendant, but also the plaintiff’s time lost and expenses incurred in searching for the same.</p> <p>3. Justices of the peace—accuracy required. In suits commenced before justices of the peace, technical precision and accuracy in the form of the entries are not indispensable.</p>

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

John G. Rogers, Judge, presiding. This is an action brought before the county court, by Egan, against John Lill and others, executors of the last will and testament of William Lill, deceased. Judgment was rendered against the defendants in the county court, who appealed to the circuit court.

<p>Appeal from, the Appellate Court of the First District; the Hon. Theodore D. Murphy, presiding Justice, and Geo. W. Pleasants and J. M. Bailey, Justices.</p>

<p>Writ of Error to the Circuit Court of Bureau county; the Hon. F. Goodspeed, Judge, presiding.</p>